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HomeMy WebLinkAboutNorthern Lights Resort_14000250197001_Variances_06-12-2014DOC# 1148827Date Stamp 1148827 Fee: $46.00 Well Certificate [ ] Rec'd OFFICE OF COUNTY RECORDER OTTER TAIL COUNTY, MINNESOTA Certified, Filed, and/or Recorded: September 16, 2014 2:00 PM Brian Armstrong, Recorder received WND*F(saouRce Returned To: LAND & RESOURCE By: LLL&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 COMPLETE THIS APPLICATION IN BLACK INK Receipt Number _ Accepted By / DateLi^ l\is> j^€ior Owner/Applicant - Cher>I and Vince Prososki, Pro’s Properties LLC, Parcel No. 14000250197001,35387 Northern Lights Trail Richville MN 56576 PROPERTY OWNER Owner of proposed 6.3 acre property to be purchased - Paulette Jimenez, Parcel No. 14000250197011,201 Beckworth Lane, Irom, SC 29063 MAILING ADDRESS 218-346-6046 St*383 LAKE CLASSLAKE NAMELAKE NUMBER SECTION RANGETOWNSHIP TOWNSHIP NAME C^wner/ApplicantPARCEL' NUMBER - Cheryl and Vince Prososki, Pro’s Properties LLC, Parcel No. 14000250197001,35387 Northern Lights Trail, Richville, MN 56576 \X, Owner of proposed 6.3 acre property to be purchased - Paulette Jimenez, Parcel No. 14000250197011,201 Beckworth Lane, Irom, SC 29063 Owner/Applicant - Cheryl and Vince Prososki, WD Doc. No. 1106774LEGAL DESCRIPTION ©Owner - Paulette Jimenez, Personal Representatives Deed Doc. No. 889038 Q f+ TYPE OF VARIANCE REQUESTED (Please Check) Cluster WECSStructure Setback Structure Size Sewage System Subdivision Misc. SPECIFY HOW YOUR PROJECT VARIES FROM ORDINANCE REQUIREMENTS. PLEASE BE BRIEF AS THIS WILL BE USED FOR PUBLIC NOTIFICATION. Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort. We would like to eventually place 15 seasonal campsites w ith 15 boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a CUP recommendation for approval at the May 14, 2014 Planning Commission meeting and final CUP approval from the Otter Tail County Commissioners at their May 20, 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustments to grant the following: 1. We are requesting a variance from the 30 foot bluff setback (the closest point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original Dedicated Public Road corridor laid out in the plat of DeSchane Beach. 2. We are requesting a variance from the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closest point lying 20 feet from the blufl). There will be no pad. RV or structures within the 30 foot bluff setback. CONTINUED ON BACK _____________ I UNDERSTAND THAT I HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE / SANITATION CODE / SETBACK ORDANAND AN/OR 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. SIGNTmj^E OF PR6pERTY OWNER / AGENT FOR OWNER APPLICANT MUST BE PRESENT AT THE HEARING (.Applicant Will Receive Notification As To The Date/Time Of Hearing) Wv< tiv y I «345,194 • Victor Lundeen Co . Printers • Fergus Falls. Minnesota 3. We are requesting a variance from the 50 foot buffer (the closest point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the northwesterly part of the 6.3 acre tract which provide walking access to the lake. This will eliminate having to construct a new walking trail. 4. We are requesting a variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites. 5. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 6. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. We would also like to note the total impervious surface for this tract of land will be less than 19%. We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. aoif n-YS'/A TimeDate Of Hearing f //. Motion Pro’s Properties LLC and Paulette Jimenez - Approved 11 campsites and 11 Boat Slips. (8:32 p.m.) June 12, 2014 Meeting - After discussion and consideration, Thomas Lee made a motion, second by David Wass and carried, with Michael Harris abstaining (Mr. Harris had left this hearing and was not in attendance when the motion was acted upon) to table this hearing per the applicants' request until the next scheduled meeting to provide Bill Kalar with an opportunity to perform additional density and boat slip calculations using other calculation methods and to provide the applicants with an opportunity to reconsider the number of sites and slips being requested. July 10, 2014 Meeting - The Otter Tail County Auditor's office received a letter dated July 9, 2014 requesting the tabling of this hearing until the August 14*'’, 2014 Board of Adjustment meeting. An email from Kevin and Bonnie Wolter and a letter from Donn and Laurel Anderson in opposition to the variances as requested and which were received since the last hearing have been placed on file. After discussion and consideration, Thomas Lee made a motion, seconded by Ward Uggerud and unanimously carried, to table as requested by the applicant this public hearing until the August 14*", 2014 Board of Adjustment meeting. August 14, 2014 Meeting - The Otter Tail County Auditor's office received a letter dated August 12, 2014 requesting the tabling of this hearing until the September 11, 2014 Board of Adjustment meeting September 11, 2014, Meeting - After discussion and consideration, Ward Uggerud made a motion, second by Thomas Lee to approve 11 campsites and 5 boat slips, which is based on the State’s standards. During discussion of this motion, it was suggested that each campsite should have a boat slip to eliminate daily transportation of the boats which might prevent campers from transporting their boats from lake to lake during their stay at the resort. After this discussion this motion was withdrawn and Ward Uggerud proceeded to make a motion to approve 11 campsites and 11 boat slips. This motion was seconded by Thomas Lee and carried with Paul Larson and David Wass voting no. Note - Michael Harris, shortly after this hearing had begun, removed himself from the seated board area and seated himself in the audience for the balance of this public hearing. Mr. Harris step down from this particular public hearing because he and his wife were former owners of this resort; however, they no longer have an ownership or financial interest in this resort. Mr. Harris did not vote. The above noted motion passed on a 3- 2 vote. It was noted that the variance as approved does provide the owners of the resort with a reasonable commercial use of the property. It was also noted that drainage from the proposed campsite areas does not go directly into the lake. The variance as approved supports the commercial resort industry and recognizes the important role resorts have both environmentally and economically. There was some concern if this action would establish precedence for other resorts; however, it was noted that each application should be consider individually, be given the same consideration and acted upon accordingly Chairman/Otter Tail County Board of Adjustment Permit(s) required from Land & Resource Management iPiujicL AoyYes (Contact Land & Resource Management) No LR Oflicial/Date Copy of Application Mailed to Applicant, Co. Assessor and the MN DNR bk 072011-001 Id Ii/ii^ Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Thursday, September 10, 2015 10:35 AM David Hauser; Bill Kalar; Jeffrey Pabarcus; Wayne Stein RE: Dead Lake Association v. Otter Tail County; #14PE0164 Resolution - temglate.docx From: Sent: To: Subject: Attachments: Attached is the Resolution template I have created. I did not out in any evidence supporting the variance because I do not believe any exists. JJK From: David Hauser fmailto:DHauser@co.ottertail.mn.us1 Sent: Wednesday, September 09, 2015 11:57 AM To: Bill Kalar; Jeffrey Pabarcus; Wayne Stetn Cc: Kuboushek, Jason Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Jason will email out tomorrow, as much as he can come up with, to which the Board of Adjustment could add any findings they have to add. He doesn't think a variance can be justified. We still want to tell the board what I outlined below. The better decision is to deny. Even if the resort wanted less it would be better to have a new application and hearing. The necessary facts just aren't in the record we have. This should be before the County Board. From: David Hauser Sent: Wednesday, September 09, 2015 10:28 AM To: 'Kuboushek, Jason' Cc: Bill Kalar; Jeffrey Pabarcus; Wayne Stein Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Jason, The meeting is Thursday. We are prepared to report to the Board of Adjustment that you couldn't come up with "legitimate" findings, let them know that the County Board is aware of the court decision and is considering an ordinance change, and that that is the correct way to address the issue. David 218-998-8406 From: Bill Kalar Sent: Thursday, September 03, 2015 11:28 AM To: David Hauser; 'Kuboushek, Jason' Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 1 Hello - my recollection is similar to David's and I don't recall much discussion other than "economics" taking place. I do, however recall that there was some discussion that additional boat slips may reduce the threat of Aquatic Invasive Species (AIS) from additional boat launches. Bill Kalar Land & Resource Mgt. 218-998-8105 OTTER milV// oovATT ■ aiaaooT* From: David Hauser Sent: Thursday, September 03, 2015 9:44 AM To: 'Kuboushek, Jason' Cc: Bill Kalar Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Jason, The only things I remember members commenting on were the unique shape of the parcel, that the topography (where the new units would be?) flows away from the lake, and I think, that they were adding land to an existing resort. I can't recall any reasons for the extra boat slips other than the belief that each unit should get a slip. Perhaps a skinny finding will lead them to say there is no basis for a variance. They may be getting there. Bill, any helpful thoughts? David 218-998-8406 From: Kuboushek, Jason fmailto:iasonk(a)irc-law.com1 Sent: Wednesday, September 02, 2015 3:17 PM To: David Hauser Cc: Bill Kalar Subject: Dead Lake Association v. Otter Tail County; #14PE0164 I wanted to let you know I am still working on the findings. The difficulty I am having is there is no evidence to support the granting of the variance. A denial would be much easier. I forward on my resolutions when they are complete. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk(S>irc-law.com www.irc-law.com 2 This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 3 * WHEREAS, Pro's Properties, LLC (Northern Lights Resort) applied for a Conditional Use Permit to add fifteen (15) campsites to the Northern Lights Resort. Thirteen (13) of the planned campsites were be located on a 6.3 acre site south and west of the resort on Dead Lake. Additionally, Pro's Properties, LLC proposed a centralized dock system on the 6.3 acre tract with 12 slips. WHEREAS, on May 14, 2014, the Otter Tail County Planning Commission recommended approval of the 13 planned campsites and 6 centralized boat slips on the 6.3 acre site. WHEREAS, on May 20, 2014, the Otter Tail County Board of Commissioners passed a motion to grant Pro's Properties, LLC a Conditional Use Permit for 13 campsites and 12 centralized boat slips subject to Pro's Properties, LLC obtaining the necessary variances from the Board of Adjustment. In granting the motion, the Board of Commissioners noted the "proposed project is compatible with the usage of the surrounding area." WHEREAS, on May 21, 2014, Pro's Properties, LLC applied for the following variances: 1. A variance from the 30 foot bluff setback in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. 2. A variance from the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closest point lying 20 feet from the bluff). 3. A variance from the 50 foot buffer (the closest point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the northwesterly part of the 6.3 acre tract which provide walking access to the lake. 4. A variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites. 5. A variance from the Tier 2 density calculation across the 6.3 acre tract fro 10 of the 11 seasonal campsites. 6. A variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. WHEREAS, at the June 12, 2014 Board of Adjustment meeting, the Board tabled the application per the applicants' request so County staff could perform additional density and boat slip calculations using other calculation methods and to provide the applicants with an opportunity to reconsider the number of sites and slips being requested. ■fe>^0 1 WHEREAS, at the July 10, 2014 Board of Adjustment meeting, the Board received another request by applicant to table the variance request until the next meeting. WHEREAS, at the August 14, 2013 Board of Adjustment meeting, the Board received another request by applicant to table the variance request until the next meeting. WHEREAS, at the September 11, 2014 Board of Adjustment meeting, the Board considered Pro's Properties, EEC's request for variances. WHEREAS, after considering the evidence, comments and public testimony, the Board of Adjustment granted a variance to Pro Properties, EEC for 11 campsites and 11 boat slips. No findings were prepared in support of the approval. WHEREAS, Phyllis Freeman and the Dead Eake Association, Inc., on October 6, 2014, appealed the Board of Adjustment's decision to the District Court. WHEREAS, on April 20, 2014, a hearing was held before District Court Judge Waldemar B Senyk on the Appellants' and County's Cross Motions for Summary Judgment. WHEREAS, on July 16, 2015, District Court Judge Senyk issued an Order which reversed the September 11, 2015 variance granted to Pro's Properties, EEC and remand the proceeding back to the Board of Adjustment for consideration of the variance application and the provisions of Minnesota Statutes § 394.27, subd. 7 and the Otter Tail County Shoreland Management Ordinance. Additionally, District Court Judge Senyk ordered the Board of Adjustment limit its inquiry and discussion to the issues raised in the earlier proceedings on June 11, 2014 and September 11, 2014. WHEREAS, Minnesota Statutes § 394.27, subd. 7 states the Board of Adjustment shall have the exclusive power to order the issuance of variances from the requirements of any official control including restrictions placed on nonconformities. Moreover, 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. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. Practical difficulties, as used in connection with the granting of a variance means: 1. That 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. 2 Economic considerations alone do not constitute practical difficulties. WHEREAS, Otter Tail County, Shoreland Management Ordinance § V.6.H (Aug 1, 2013) also provides the Board of Adjustment must consider the following additional factors when issuing variances: 1. Whether the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area; 2. Whether existing sewage treatment systems on the property need upgrading before additional development is approved; and 3. Whether granting the variance will be contrary to the public interest or damaging to the rights of other person or to property values in the neighborhood. NOW THEREFORE, BE IT RESOLVED BY THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT, pursuant to the Court's order, the Board of Adjustment has reviewed the evidence in the record, including applications, comments and testimony, from the June 11, 2014 and September 11,2014, public hearings and makes the following findings regarding Pro's Properties, LLC's request for a variance: 1. That the .property owner proposes to use the property in a reasonable manner not permitted by an official control. The evidence supporting this finding is 2. The plight of the landowner is due to circumstances unique to the property not created by the landowner. The evidence supporting this finding is 3. The variance, if granted, will not alter the essential character of the locality. The evidence supporting this finding is 4. Whether the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area. The evidence supporting this finding is 3 <r 5. Whether existing sewage treatment systems on the property need upgrading before additional development is approved. The evidence supporting this finding is 6. Whether granting the variance will be contrary to the public interest or damaging to the rights of other person or to property values in the neighborhood. The evidence supporting this finding is t' I > '■7' 7>. 4 f^lsfalSS £>F ®Peterson Family Cabin LLC - Tabled - Continued May 14, 2015 Meeting - David Peterson and Mike Peterson represented the applicant at the public hearing. Glenn Howe, Surveyor appeared with the applicant’s representatives at the public hearing. The audience was polled with no one speaking for or against the variance as requested. Letters from David and Judy Johnson, Grant and Dorothy Johnson, Perry and Janet Kugler and Pat Prunty in opposition to the variance as requested was read for the record. Emails from Ruth Gallagher, Craig and Karen Andrews, William and Sandra Shumaker, Cynthia Engelke and Joy Teiken in opposition to the variance as requested was read for the record. After much discussion and consideration, Thomas Lee made a motion, second by Paul Larson and unanimously carried, to table, with the verbal permission of the applicant’s representatives, this public hearing until the next scheduled meeting of the Board of Adjustment to allow the applicant an opportunity to consider other possible subdivision alternatives (platting, CIC). Concern was expressed with the front (lake) lot becoming more substandard if it is separated from the backlot and also available space for a septic system on the front lot should the existing system fail. Concerns with changes to the road that would be needed should the property need to be platted. The proposed backlots do meet and exceed the minimum size for platted backlots. There might be a practical difficulty that would prohibit platting because of the location of the existing neighboring structures. The proposal is really creating four lots. Detail of the lengthy discussion is available on the recording of the meeting on file with the County Auditor-Treasurer’s office. June 11,2015 Meeting - Prior to the public hearing the applicant submitted a letter requesting the continuation of the previously tabled action. July 9, 2015 Meeting - Prior to the public hearing the applicant submitted a letter requesting the continuation of the previously tabled action. August 13,2015 Meeting - Prior to the public hearing the applicant submitted a letter requesting the continuation of the previously tabled action. September lO***, 2015 Meeting - Prior to the public hearing the applicant submitted a letter requesting the continuation of the previously tabled action. Prop Properties, LLC dba Northern Lights resort - (7:40 p.m.) Pro’s Properties, LLC DBA Northern Lights Resort, Dead Lake in Dead Lake Township - Order and Memorandum Granting Appeal and Reversing Decision - Court File No. 56-CV-14-2852. From August 13, 2015 minutes - A District Court decision has remanded back to the Otter Tail County Board of Adjustment for hearing and consideration the provisions of Minnesota Statute 394.27 Subdivision 7 and the Otter Tail County Shoreland Management Ordinance. From September 10, 2015 meeting- A previously approved variance application had been appealed to District Court. The court reversed the Board’s decision and as noted above the court remanded the variance application back to the Board of Adjustment for consideration of the provisions of Minnesota Statute 394.27 Subdivision 7 and the Otter Tail County Shoreland Management Ordinance. At tonight’s meeting no additional comments from Pro’s Properties LLC, the applicant, Phyllis Freeman and the Dead Lake Association, Inc., the appellants or the general public will be received by the Board of Adjustment. Tonight’s discussion and decision is to be based upon the record as previously created at the proceedings which occurred on June 11 and September 11,2014. September 10,2015Page 6 Steve Schierer, Chair and Bill Kalar, Director - Land and Resource Department review the following options available for the Board’s consideration: 1. State clearly the evidence/finding supporting the variances as previously granted. 2. Deny the variance application. (Recommended by Jason Kuboushek, Attorney representing Otter Tail County) 3. Approve a lessor variance. (Not Recommended) Mr. Schierer and Mr. Kalar also noted that the County Board of Commissioners is aware of the District Court’s decision and is considering the possibility of amending the County’s ordinance to include standards for commercial development. There is a process, which includes public hearings and Department of Natural Resource approval before the ordinance can be amended. After discussion and consideration, Thomas Lee made a motion, second by Ward Uggerud and carried with Steve Schierer voting no and with Loren Bailey abstaining to deny the variances as requested as no adequate hardships/practical difficulties unique to the property had been shown that would support the required/necessary findings that would allow the Board of Adjustment to grant the variances as requested. The following was prepared by Jason Kuboushek, Attorney and is included in the minutes by the Secretary for informational purpose and as general summary of the events leading to tonight’s hearing - Pro’s Properties, LLC (Northern Lights Resort) applied for a Conditional Use Permit to add fifteen (15) campsites to the Northern Lights Resort. Thirteen (13) of the planned campsites were be located on a 6.3 acre site south and west of the resort on Dead Lake. Additionally, Pro’s Properties, LLC proposed a centralized dock system on the 6.3 acre tract with 12 slips. On May 14, 2014, the Otter Tail County Planning Commission recommended approval of the 13 planned campsites and 6 centralized boat slips on the 6.3 acre site. On May 20, 2014, the Otter Tail County Board of Commissioners passed a motion to grant Pro’s Properties, LLC a Conditional Use Permit for 13 campsites and 12 centralized boat slips subject to Pro’s Properties, LLC obtaining the necessary variances from the Board of Adjustment. In granting the motion, the Board of Commissioners noted the “proposed project is compatible with the usage of the surrounding area.” On May 21, 2014, Pro’s Properties,XLC applied for the following variances: A variance from the 30 foot bluff setback in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. A variance Irom the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closest point lying 20 feet from the bluff). A variance from the 50 foot buffer (the closest point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the northwesterly part of the 6.3 acre tract which provide walking access to the lake. 1. 2. 3. September 10, 2015Page 7 4. A variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites. 5. A variance from the Tier 2 density caleulation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 6. A variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. At the June 12, 2014 Board of Adjustment meeting, the Board tabled the application per the applicants’ request so County staff could perform additional density and boat slip calculations using other calculation methods and to provide the applicants with an opportunity to reconsider the number of sites and slips being requested. At the July 10, 2014 Board of Adjustment meeting, the Board received another request by applicant to table the variance request until the next meeting. At the August 14, 2013 Board of Adjustment meeting, the Board received another request by applicant to table the variance request until the next meeting. At the September 11, 2014 Board of Adjustment meeting, the Board considered Pro’s Properties, LLC’s request for variances. After considering the evidence, comments and public testimony, the Board of Adjustment granted a variance to Pro Properties, LLC for 11 campsites and 11 boat slips. No findings were prepared in support of the approval. Phyllis Freeman and the Dead Lake Association, Inc., on October 6, 2014, appealed the Board of Adjustment’s decision to the District Court. On April 20, 2014, a hearing was held before District Court Judge Waldemar B Senyk on the Appellants’ and County’s Cross Motions for Summary Judgment. On July 16, 2015, District Court Judge Senyk issued an Order which reversed the September 11, 2015 variance granted to Pro’s Properties, LLC and remand the proceeding baek to the Board of Adjustment for consideration of the variance application and the provisions of Minnesota Statutes § 394.27, subd. 7 and the Otter Tail County Shoreland Management Ordinance. Additionally, District Court Judge Senyk ordered the Board of Adjustment limit its inquiry and discussion to the issues raised in the earlier proceedings on , June 11, 2014 and September 11, 2014. Minnesota Statutes § 394.27, subd. 7 states the Board of Adjustment shall have the exclusive power to order the issuance of variances from the requirements of any official control including restrictions placed on nonconformities. Moreover, 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. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. Practical difficulties, as used in connection with the granting of a variance means: September 10, 2015Page 8 4,^ That the property owner proposes to use the property in a reasonable manner not permitted by an official control; The plight of the landowner is due to circumstances unique to the property not created by the landowner; and The variance, if granted, will not alter the essential character of the locality. 1. 2. 3. Economic considerations alone do not constitute practical difficulties. Otter Tail County, Shoreland Management Ordinance § V.6.H (Aug 1, 2013) also provides the Board of Adjustment must consider the following additional factors when issuing variances: 1. Whether the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area; 2. Whether existing sewage treatment systems on the property need upgrading before additional development is approved; and 3. Whether granting the variance will be contrary to the public interest or damaging to the rights of other person or to property values in the neighborhood. With no further business, Steve Schierer, Chairman declared the meeting adjourned at 7:52 p.m. Prepared by: Wayne Stein, Secretary The minutes were mailed on Friday, September 11, 2015, 2015 to the Otter Tail County Board of Adjustment. Official action regarding these minutes will be taken by the Board of Adjustment at their next regularly scheduled meeting. September 10, 2015Page 9 Bill Kalar David Hauser Monday, September 14, 2015 9:02 AM Bill Kalar FW; Dead Lake Association v. Otter Tail County; #14PE0164 From; Sent: To: Subject: HighImportance: From: Wayne Stein Sent: Monday, September 14, 2015 7:51 AM To: David Hauser Subject: FW: Dead Lake Association v. Otter Tail County; #14PE0164 Importance: High September 14, 2015 Dear David, Meant to copy you on my response. Sincerely, Wayne Stein, County Auditor - Treasurer Government Services Center 510 FirAve W. Fergus Falls, MN 56537 Office Line - 218 998-8030 Direct Line-218 998-8041 Fax Line - 218 998-8042 wJ 9oTiTf ■■••tioTiTRIl From: Wayne Stein Sent: Friday, September 11, 2015 3:25 PM To: 'Kuboushek, Jason' Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Importance: High September 11, 2015 Dear Mr. Kuboushek, I thought the hearing went fine. The Board of Adjustment decided to deny the application. They understood their options, which they considered to be as follows: 1 i.* 1. State clearly the evidence/finding supporting the variances as previously granted. 2. Deny the variance application. 3. Approve a lessor variance. Only five of the six members were in attendance. Of those five only 3 were a part of the original proceedings. The vote was 3 in favor of denial, 1 in opposition to the motion to deny and 1 abstaining. The Board really made no attempt to find any evidence to support their previous decision. The hearing probably lasted less than 15 minutes. I think I offended one of the person in attendance (1 believe he was legal counsel for the association) because I had only made copies of your drafted resolution for the Board members and not for general circulation within the room. Since I have the ability to project documents in the room I didn't think making copies was all that important. I did indicate that I could project the document, but since there was no lengthy discussion regarding the document I did not. After the meeting was over I when to where he was seated and offer to make a copy if he would wait. He did wait and I did make a copy for him as well as for the applicants and for Cheryl Harris. His only remark to me was that I had violated the open meeting law by not having copies available for those in attendance. Anyone who requested a copy was provided a copy; however, not immediately during the meeting, but directly after. Cheryl called me earlier today wondering who had drafted the resolution and if I had read it. I told her you had drafted the resolution and confirmed that I had read the document. She seemed concern about some of the statements. All in all I think it went as well as it could with hopefully lessons learned by all of us. Sincerely, Wayne Stein, County Auditor - Treasurer Government Services Center 510 Fir Ave W. Fergus Falls, MN 56537 Office Line - 218 998-8030 Direct Line-218 998-8041 Fax Line - 218 998-8042 ■ moiifOTiTnii From: Kuboushek, Jason [mailto:iasonk(S)irc-law.com1 Sent: Friday, September 11, 2015 2:25 PM To: David Hauser; Bill Kalar; Jeffrey Pabarcus; Wayne Stein Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Good afternoon everyone. I received a call from Cheryl Harris about last night's hearing. She was quite upset with the hearing and the process. Answered her questions about the administrative record, but I could not respond to questions regarding the hearing. How did the hearing go? What did the Board of Adjustment do? JJK 2 ' J From: David Hauser [mailto:DHauser@co.ottertail.mn.us1 Sent: Wednesday, September 09, 2015 11:57 AM To: Bill Kalar; Jeffrey Pabarcus; Wayne Stein Cc: Kuboushek, Jason Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Jason will email out tomorrow, as much as he can come up with, to which the Board of Adjustment could add any findings they have to add. He doesn't think a variance can be Justified. We still want to tell the board what I outlined below. The better decision is to deny. Even if the resort wanted less it would be better to have a new application and hearing. The necessary facts just aren't in the record we have. This should be before the County Board. From: David Hauser Sent: Wednesday, September 09, 2015 10:28 AM To: 'Kuboushek, Jason' Cc: Bill Kalar; Jeffrey Pabarcus; Wayne Stein Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Jason, The meeting is Thursday. We are prepared to report to the Board of Adjustment that you couldn't come up with "legitimate" findings, let them know that the County Board is aware of the court decision and is considering an ordinance change, and that that is the correct way to address the issue. David 218-998-8406 From: Bill Kalar Sent: Thursday, September 03, 2015 11:28 AM To: David Hauser; 'Kuboushek, Jason' Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 Hello - my recollection is similar to David's and I don't recall much discussion other than "economics" taking place. I do, however recall that there was some discussion that additional boat slips may reduce the threat of Aquatic Invasive Species (AIS) from additional boat launches. Bill Kalar Land & Resource Mgt. 218-998-8105 , OTTCR miloooorr • aiaaiioTt From: David Hauser Sent: Thursday, September 03, 2015 9:44 AM To: 'Kuboushek, Jason' Cc: Bill Kalar Subject: RE: Dead Lake Association v. Otter Tail County; #14PE0164 3 / Jason, The only things I remember members commenting on were the unique shape of the parcel, that the topography (where the new units would be?) flows away from the lake, and I think, thatThey were adding land to an existing resort. I can't recall any reasons for the extra boat slips other than the belief that each unit should get a slip. Perhaps a skinny finding will lead them to say there is no basis for a variance. They may be getting there. Bill, any helpful thoughts? David 218-998-8406 From: Kuboushek, Jason fmailto:iasonk(a)irc-law.com1 Sent: Wednesday, September 02, 2015 3:17 PM To: David Hauser Cc: Bill Kalar Subject: Dead Lake Association v. Otter Tail County; #14PE0164 I wanted to let you know I am still working on the findings. The difficulty I am having is there is no evidence to support the granting of the variance. A denial would be much easier. I forward on my resolutions when they are complete. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk(g),irc-law.com www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 4 V - V Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Thursday, September 24, 2015 1:59 PM Jeff Hentges (jhentges@mcit.org) David Hauser; Bill Kalar Dead Lake Association v. Otter Tail County; #14PE0164 9 24 15.pdf From: Sent: To: Cc: Subject: Attachments: Good afternoon Jeff, Please see the attached report. Feel free to contact me \A/ith any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial; 952-548-7206 Facsimile: 952-548-7210 iasonk(g),irc-law.com www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This coimnunication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 A Iverson Rexjvers Condon ATTORNEYS AT LAW V Mark). Condon Jon K. Iverson Paul D. Reuvers Jason J. Kuboushek JasonM.Hiveley Susan N/I.Tindal Stephanie A. Angolkar Andrea B. Smith Nathan C.Midolo Brian P. Taylor September 24, 2015 Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 Dead Lake Association v. Otter Tail County Claim No: 14PE0164 Our File No. 200.1332 RE: Dear Mr. Hentges: Since our last report, the County Board of Adjustment held a hearing to address Judge Senyk's remand of the variance granted to Northern Lights Resort. As you will recall. Otter Tail Board of Adjustment previously granted Northern Lights Resort a variance for 11 campsites and 11 boat slips. No findings were prepared in support of their approval and the Dead Lake Association appealed the decision to district court. Judge Senyk in his Order reversed the granting of the variance and remanded the case back to the Board of Adjustment for findings on the matter. After meeting with the Board of Adjustment, we indicated we would prepare draft findings, both in favor of the approval and against the approval of the variance. However, after reviewing the record and the lack of evidence supporting a variance, we recommended the Board of Adjustment deny the variance. At the public hearing, the Board of Adjustment discussed Judge Senyk's decision and reviewed the evidence in the record. They then voted to deny the variance as requested because there was no adequate hardship or practical difficulties unique to the property that would support the granting of the variance. Obviously, Northern Lights Resort was upset but accepted the Board of Adjustment's decision. The following day I received a phone call from prior Northern Lights owner, Cheryl Harris, who was very critical of the Board of Adjustment's decision as well as our involvement in the case. She believed there was sufficient evidence in the 9321 Ensign Avenue South I Bloomington, MN 55438 I 952.548.7200 I fax; 952.548.7210 I www.irc-law.com i.' September 24, 2015 Page 2 record; however, she was not fully versed on the appropriate variance standard. The denial of this variance on remand will conclude our handling of this matter. Thank you for the opportunity to work with Otter Tail County on this matter. By copy of this letter, 1 would like to thank Otter Tail County for their assistance in gathering the documents for the Administrative Record and in dealing with this remand issue. Clearly, the Board of Adjustment was put in a difficult position when the County Board granted a conditional use permit for the resort expansion conditioned upon the variance approval. It is my understanding the County Board is going to look at possibly amending its zoning ordinances so that this particular use may be allowed in the future. Once again, thank you for the opportunity to work with MCIT and we look forward to working with you in the future. Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: iasonk@irc-law.com David Hauser, County Attorney Bill Kalar, Planning & Zoning Administrator cc: Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Friday, August 21, 2015 2:21 PM Jeff Hentges (jhentges@mcit.org) David Hauser; Bill Kalar Dead Lake Association v. Otter Tail County; #14PE0164 8 2115.pdf From: Sent: To: Cc: Subject: Attachments: Good afternoon Jeff, Please see the attached report. Feel free to contact me with any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk@irc-law.com www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 Iverson Reuvers Condon ATTORNEYS AT LAW (S ,) 'X MarkJ, Condon Jon K. Iverson Paul D. Reuvers Jason J. Kuboushek Jason M, Hiveley Susan M. Tindal Stephanie A, Angolkar Andrea B. Smith Nathan C. Midolo Brian P. Taylor \August 21, 2015 Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 RE: Dead Lake Association v. Otter Tail County Claim No: 14PE0164 Our File No. 200.1332 Dear Mr. Hentges: Since my last report, I have had an opportunity to meet with the Otter Tail County Board of Adjustment. As you will recall, the district court reversed the granting of a variance to Northern Lights Resort and remanded this matter back to the Board of Adjustment for preparation of findings regarding the variance. After talking with the County Attorney, we scheduled a closed meeting with the Board of Adjustment to discuss the district court order as well future action on this matter. During the closed meeting, we had a very good discussion regarding the district court decision as well as the options for the Board of Adjustment. Three options were discussed: 1. The Board of Adjustment could prepare findings which support the granting of the variance; 2. The Board of Adjustment could prepare findings indicating there is not sufficient evidence in the record to support a grant of a variance and to reverse its prior approval of the variance; and 3. The Board of Adjustment could prepare findings which grant a variance with lesser impact i.e., fewer sites as well as docking slips. 5 Each of these options has pluses and minuses. With respect to the first option, we already know the Dead Lake Association will appeal and challenge any findings supporting the granting of a variance. Conversely, with respect to the second option, we anticipate Northern Lights Resort will challenge any findings supporting the denial of a variance. This legal 9321 Ensign Avenue South | Bloomington, MN 55438 I 952.548.7200 1 fax: 952.548.7210 1 www.irc-law.com August 21, 2015 Page 2 challenge, however, would not have much merit based upon the district court's order reviewing the previous variance approval and the lack of compatibility with the variance standards. The final option could be challenged by either Dead Lake Association of the property owner because it is granting a variance, but also differs from what was previously approved. The Board of Adjustment fully understands it is in a difficult position given the County Board granted a CUP with one of the conditions being a variance approval; however, that variance is difficult to grant based upon the County's ordinance. We will be working with County staff to prepare the findings for the Board of Adjustment to consider at the September hearing. We will not, however, be attending that hearing. Please feel free to contact me with any questions. Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: jasonk@irc-law.com David Hauser, County Attorney BUI Kalar, Planning & Zoning Administrator cc: - 8 e>r S£ssicrJ 8 £>f U//MT 04*y^c H>^t4i’£:/i C.^> /^rfwy) Hi4a^^^HSic^ C 4m^i) fC'iuc U£!^7T^ <^AJ /01^Dn<f<r<5 P<. (3 0i^C\4^\Ot)^lcat ^ pAA<TJt/fL Dlf^fi ^cn Hu(D Pt-^r T2>CcT7f61 F/rJ/)ffJCS Ffi/>^ The ^Sa>/W 77/^r J^B VfiMAf^cc i^PPA^Au-I- * 9,EMcMiZ mAiJKfElA, j USS V pLK^nr [>F Lfi^JdQUtJ^A, ■■ r)»< yv\^ /fLTB>( L^OU^lTi @ THE \/MiArJcZ ... .........j.. Moieate CEtJiAL^ rAH(f\ THc fijEcLAj> ® /f “ VA/li4fJ<.E LBS^ i •i !rJ it^^,AEAT S- THi^ t^^fiAJ\/Ac TT^ir t^Ecp/U> (lBs^Acr ’?aBPA<L^ Ei<-J0thf<rs Fpa. th-S ^ILL^ £/44.M B ^ Is Cet^tatSAATl^J ^ TUSt^ ^BFT. ^ TH /^esTi^C ♦ Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Thursday, August 13, 2015 8:13 AM Wayne Stein; David Hauser Bill Kalar RE: Varainace Appeal Decision From: Sent: To: Cc: Subject: Great. Thank you. JJK From: Wayne Stein rmailto:wstein(a)co.ottertail.mn.us1 Sent: Thursday, August 13, 2015 8:12 AM To: Kuboushek, Jason; David Hauser Cc: Bill Kalar Subject: RE: Varainace Appeal Decision We are scheduled for a closed session from 6:00 to 6:30 p.m. and copies have been provided. Wayne Stein, County Auditor - Treasurer Government Services Center 510 Fir Ave W. Fergus Falls, MN 56537 Office Line-218 998-8030 Direct Line-218 998-8041 Fax Line-218 998-8042 From: Kuboushek, Jason fmailto:iasonk@irc-law.com1 Sent: Thursday, August 13, 2015 8:08 AM To: David Hauser Cc: Bill Kalar; Wayne Stein Subject: RE: Varainace Appeal Decision Good morning. I just wanted to confirm we are still set for tonight. Also, was the Board of Adjustment provided a copy of the decision or should 1 bring copies? JJK From: David Hauser rmailto:DHauser@co.ottertail.mn.us1 Sent: Monday, July 27, 2015 8:32 AM To: Kuboushek, Jason Cc: Bill Kalar; Wayne Stein Subject: RE: Varainace Appeal Decision 1 ■* Jason, Wayne has scheduled the Board of Adjustment on August 13 to start at 6:00 p.m., a half hour ahead of its usual time. 6:00-6:30 is for the closed session on the appeal remand. Please confirm that you will be here. David 218-998-8406 From: David Hauser Sent: Thursday, July 23, 2015 2:21 PM To: Wayne Stein Cc: Bill Kalar; Kuboushek, Jason fiasonk(5)irc-law.com') Subject: Varainace Appeal Decision Wayne, I received a phone call from Jason. He agrees with our plan to provide the order to the board of adjustment for discussion on August 13, and then have them reconvene at their September meeting to address the remand. Jason could come up for a closed attorney client privileged session that day. Can we get him on early? 6:30, 6:00? Jason suggests that we notify the parties (Norther Lights Resort, the applicant and Dead Lake Association, the appellant) of the September open meeting, but no one would be allowed to speak at that hearing. It would just be the board working through the record to determine what if any findings can be made. The board could also determine that the variance should be denied, and make findings that there are no practical difficulties. In the meantime we are on County Board agenda for this Tuesday with this topic. David 218-998-8406 ■ V 2 Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Friday, July 31, 2015 1:24 PM Jeff Hentges (jhentges@mcit.org) David Hauser; Bill Kalar 14PE0164; Dead Lake Association v. Otter Tail County 7 3115.pdf; 2015-07-16 Order and Remand.pdf From: Sent: To: Cc: Subject: Attachments: Good afternoon Mr. Hentges, Please see the attached report and Order. Feel free to contact me with any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk(g)irc-law.com www.irc-law.com % / This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 » Iverson Reuvers Condon ATTORNEYS AT LAW July 31, 2015 Mark J. Condon Jon K. Iverson Paul D. Reuvers Jason j. Kuboushek Jason M. Hiveley Susan M. Tindal Stephanie a. Angolkar Andrea B. Smith Nathan C. Midolo Brian P. Taylor Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 ^Lli / Otter Tail County lAfi/QDead Lake Association v. Claim No: 14PE0164 Our File No. 200.1332 RE: Dear Mr. Hentges: Since our last report, we have received Judge Senyk's Order and Memorandum. As you will recall, this case involves a challenge to a variance given to Pro Properties, also known as Northern Lights Resort, for a variance approving 11 campsites and 11 boat slips on property adjacent to the current Northern Lights Resort site. The association challenged the variance based upon the alleged lack of practical difficulties, failure to follow the County shoreline regulations, and the lack of findings. Both parties submitted cross Motions for Summary Judgment and the matter was heard by Judge Senyk on April 20, 2014. In his Order and Memorandum, the Court reversed the grant of the County's variance. In reversing the decision, the Court questioned the Board of Adjustment's authority to increase the density via variance which would otherwise not be allowed by the shoreline regulations. The Court also questioned the evidence supporting the Board of Adjustment's decision. Judge Senyk did, however, grant our request for remand to the Board of Adjustment to prepare adequate findings in support of the Board of Adjustment's decision. The Court remanded it back but limited the inquiry and discussion to the issues raised in the prior hearings. We are not surprised by Judge Senyk's decision. When we first reviewed the case, we knew there were issues with the variance approval. In talking with County staff, they agreed with our evaluation. That is why we raised the remand argument with the hope we would be able to draft findings in support of the decision. I have talked with Coxmty Attorney David Hauser regarding the decision. We both agree the Court did not like the variance approval and additional 9321 Ensign Avenue South I Bloomington, MN 55438 I 952.548.7200 I fax: 952.548.7210 I www.irc-law.com July 31, 2015 Page 2 public hearings would be necessary to deal with the remand. Currently we have set August 13 as a date for a closed meeting to discuss the case with the Board of Adjustment. In my opinion, there are several options for the Board of Adjustment to consider. First, we could comb the record for evidence which supports the granting of the variance. I believe this would be a very difficult proposition because I do not believe there is much evidence in the record supporting the decision. Alternatively, the Board of Adjustment could review the evidence and determine they are reversing the decision and deny the variance. This would result in an end to the Dead Lake Association's challenge to the variance but could create a new challenge by Northern Lights Resort. That challenge, based upon Judge Senyk's Order, however, would have a difficult time succeeding. Moreover, we would need to prepare an adequate record indicating why the variance cannot be approved following a remand. County Attorney Hauser and 1 agreed to discuss both of these options with the Board of Adjustment. 1 intend to recommend the reversal of the approval of the variance. Regardless of how the Board of Adjustment decides to move forward, the matter will be brought to a public hearing m September. At that time, the Board wiU have to vote on finding either in support of the approval of the variance or reversing its decision. I will not need to attend this hearing, as it can be handled by County staff and County Attorney Hauser. I will report back following the August 13 closed meeting with the Board to discuss Judge Senyk's opinion. Please feel free to contact me with any questions. Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: iasonk@irc-law.com David Hauser, County Attorney Bill Kalar, Planning & Zoning Administrator cc: /^i^TluJ G" August 2,2015 RECEIVED Wayne Stein Board of Adjustment Secretary Otter Tail County Government Services Center 510 Fir Avenue West Fergus Falls, MN 56537 AUG 0 9 2015 0 I I hR IrtiL nuui i U: ■ FERGUS FALLS, MN Pro's Property Wayne, The following are my comments following review of the decision of the District Court in the matter of the Pro's Property variance request which was grand by the Board of Adjustment at the September 11, 2014 meeting and reversed and remanded by the Court on July 16, 2015. The reversal by the court seems to reject the rationale by the Board that the practical difficulty in this application was that absent a variance from the Board the proposed expansion of the Northern Lights Resort could not take place. In short, however, that was the "difficulty" that the applicants faced. I believe it is significant that the court did not simply reverse but that it also remanded back to the Board for additional discussion. From my perspective, the "practical difficulty" in this case was that the applicants could not expand their resort as proposed without a variance from the Board of Adjustment. The Board realized that and was guided in its discussion by the following factors: 1. The County Commission had approved the project subject to a variance being issued. 2. The Planning Commission had approved the project subject to a variance being issued. 3. The Board of Adjustment considered in its decision : a. The fact that drainage from the proposed resort expansion would be away from, rather than directly into the lake b. That the number of boat slips, while greater than either the County or the State guidelines would potentially have less impact on the lake by discourage the trailering of boats between various lakes. c. At a previous joint meeting of the County Commissioners, The Planning Commission and the Board of Adjustment there was discussion about the impact the currently adopted Shoreland Management policies were having on area resorts and that it might be an area of potential change. This matter was an important consideration for the Board of Adjustment because as state previously both the County Commission and the County Planning Commission had previously approved this project and I as a member of the Board of Adjustment viewed the County Commission and County Planning Commission approval as being consistent with the views expressed at that joint meeting, d. Implicit in the consideration of the variance request was the notion that economic development considerations were consistent with the intent of the parties involved representing the County. The Court Order offers that the State Statues provide that Practical Difficulties are present when: 1. The property owner proposes to use the property in a reasonable manner not permitted by and official control. 2. The plight of the landowner is due to circumstances unique to the property not created by the landowner. 3. The variance, if granted, will not alter the essential character of the locality. Arguably, items 1 and 3 above can be met by the Pro's Property request. Item # 2, the plight of the landowner is more difficult because I suppose it could be argued that the circumstance is actually created by the landowner in proposing a project without the sufficient amount of property to accommodate the project as per the official controls. Further, the Order offers points out that the Otter Tail County Shoreland Ordinance provides some additional guidance for use in considering the issuance of a variance: 1. Whether the variance will secure for the applicant a right or rights that are enjoyed by others in the same area. 2. Whether the existing sewage treatment systems on the property need upgrading before additional development is approved. 3. Whether 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. Arguably items 2 and 3 can be met by the Pro's Property request. Item 1, however probably cannot be met because this variance request is unique to this application and I don't believe that it could be argued that any other property owners are already enjoying what the Pro's Property application now seeks. Based on all of the above, it would be my opinion that the resolution of the matter of the Pro's Property application is one that would most appropriately follow from the adoption of changes to the Otter Tail County Shoreland Management Ordinances. This would be the purview of the Otter Tail County Commission and not the Board of Adjustment. My original motion to approve a variance for 11 campsites and 5 boat slips was based on conformity with the state commercial standards. If the County Commission does not see fit to adopt those standards then I believe that the opinion of the Court would prevail and that the variance request will be difficult to justify. It is further my opinion that my comments be provided to the County Attorney and that they are not for argument or presentation at the Board of Adjustment meeting. These matters are legal in nature and my comments only reflect my thoughts as to this matter as a board member. To the extent that any of these comments have merit or not, that should be for the County Attorney to determine. This is my first experience with a judicial review of a Board determination and therefore it is my opinion that the next action of the Board should follow legal guidance from the County Attorney and hence I direct my reflections to him. Sincerely, Ward Uggerud Bill Kalar From: Sent: Kuboushek, Jason <jasonk@irc-law,com> Monday, July 27, 2015 8:33 AM David Hauser Bill Kalar; Wayne Stein RE: Varainace Appeal Decision To: Cc: Subject: Yes. I will be there. JJK From: David Hauser rmailto:DHauser@co.ottertail.mn.us1 Sent: Monday, July 27, 2015 8:32 AM To: Kuboushek, Jason Cc: Bill Kalar; Wayne Stein Subject: RE: Varainace Appeal Decision Jason, Wayne has scheduled the Board of Adjustment on August 13 to start at 6:00 p.m., a half hour ahead of its usual time. 6:00-6:30 is for the closed session on the appeal remand. Please confirm that you will be here. David 218-998-8406 From: David Hauser Sent: Thursday, July 23, 2015 2:21 PM To: Wayne Stein Cc: Bill Kalar; Kuboushek, Jason nasonk@irc-law.com') Subject: Varainace Appeal Decision Wayne, I received a phone call from Jason. He agrees with our plan to provide the order to the board of adjustment for discussion on August 13, and then have them reconvene at their September meeting to address the remand. Jason could come up for a closed attorney client privileged session that day. Can we get him on early? 6:30, 6:00? Jason suggests that we notify the parties (Norther Lights Resort, the applicant and Dead Lake Association, the appellant) of the September open meeting, but no one would be allowed to speak at that hearing. It would just be the board working through the record to determine what if any findings can be made. The board could also determine that the variance should be denied, and make findings that there are no practical difficulties. In the meantime we are on County Board agenda for this Tuesday with this topic. David 218-998-8406 1 OTC Board of Commissioners’ Minutes July 28, 2015 Page 2 Prairie Lakes Municipal Solid Waste Authority Commissioner Huebsch reported on factors affecting the PLMSWA budget and cash flow. He indicated that the Business Plan is still viable but may need some adjustments. The PLMSWA Board plans to meet with all member County Boards to update them on the issues, solutions, and possible increased tipping fees. Northern Lights Resort Variance County Attorney David Hauser reported on a court appeal issued by the Dead Lake Association regarding a variance decision made by the Otter Tail County Board of Adjustment for Northern Lights Resort. The Board of Adjustment granted a number of units and dock slips based on the statewide standards; however, Otter Tail County has not adopted those standards. The Court reversed the decision of the Board of Adjustment, granted the appeal and remanded it back to the Board of Adjustment in the event that findings could be made. Motion by Huebsch, second by Froemming, and unanimously carried to consider changes to the Otter Tail County Shoreland Management Ordinance including standards for duplex, triplex, fourplex and commercial use. Recess & Reconvene At 9:23 a.m.. Chairman Lindquist recessed the meeting of the Otter Tail County Board of Commissioners for a short break. The meeting was reconvened at 9:33 a.m. RESOLUTION FOR RELEASE OF RIGHT OF WAY COUNTY STATE AID HIGHWAY 82 Otter Tail County Resolution No. 2015 - 54 WHEREAS, the County of Otter Tail has received a request for the vacation of a portion of right-of-way on County State Aid Highway 82, and which property is no longer required for right-of-way purposes; and WHEREAS, there remains adequate right-of-way for highway purposes; and WHEREAS, the following legal description was prepared by Anderson Land Surveying and approved by the Otter Tail County Highway Department; Any and all public roads located in that part of Government Lot 1, Section 9, Township 131, Range 42, Otter Tail County, Minnesota, being a part of Parcel 16, OTTER TAIL COUNTY HIGHWAY RIGHT OF WAY PLAT NO. 16, according to the recorded plat thereof, described as follows: Commencing at the East Quarter corner of said Section 9; thence North 00 degrees 16 minutes 52 seconds West (bearing is based on Otter Tail County Coordinates - 1996 adjustment) along the east line of the Southeast Quarter of the Northeast Quarter, said Section 9, a distance of 1223.76 feet to the centerline of County State Aid Highway No. 82 as defined in said OTTER TAIL COUNTY RIGHT OF WAY PLAT NO. 16; thence North 61 degrees 23 minutes 52 seconds West along said centerline, a distance of 649.94 feet; thence northwesterly, along said centerline, on a tangential curve concave to the northeast, having a radius of 5729.58 feet and a delta angle of 04 degrees 40 minutes 20 seconds, for an arc distance of 467.22 feet to the point of beginning of the land to be described; thence northwesterly, continuing along said centerline, on a tangential curve concave to the northeast, having a radius of 5729.58 feet and a delta angle of 13 degrees 18 minutes 13 seconds, for an arc distance of 1330.37 feet to the north line of said Government Lot 1; thence South 89 degrees 37 minutes 43 seconds West along said north line, a distance of 323 feet more or less, to the Ordinary High Water line of Mud Lake; thence in a general southeasterly direction, along said Ordinary High Water line to the intersection with a line which bears North 89 degrees 49 minutes 13 seconds West from the point of beginning; thence South 89 degrees 49 minutes 13 seconds East a distance of 154 feet more or less, to the point of beginning. EXCEPT that part within 75.00 feet of the centerline of County State Aid Highway No. 82 as defined in said OTTER TAIL COUNTY RIGHT OF WAY PLAT NO. 16; Containing 4.71 acres more or less. Bill Kalar David Hauser Thursday, July 23, 2015 2:21 PM Wayne Stein Bill Kalar; Kuboushek, Jason (jasonk@irc-law.com) Varainace Appeal Decision From: Sent: To: Cc: Subject: Wayne, I received a phone call from Jason. He agrees with our plan to provide the order to the board of adjustment for discussion on August 13, and then have them reconvene at their September meeting to address the remand. Jason could come up for a closed attorney client privileged session that day. Can we get him on early? 6:30, 6:00? Jason suggests that we notify the parties (Norther Lights Resort, the applicant and Dead Lake Association, the appellant) of the September open meeting, but no one would be allowed to speak at that hearing. It would just be the board working through the record to determine what if any findings can be made. The board could also determine that the variance should be denied, and make findings that there are no practical difficulties. In the meantime we are on County Board agenda for this Tuesday with this topic. David 218-998-8406 1 JUi ^No ^OfsFILED$1 c:^STATE OF MINNESOTA JUL 1 6 2015 IN DISTRICT COURT COUNTY OF OTTER TAIL COURT administratorOTTER TAIL COUNTY. MINN SEVENTH JUDICIAL DISTRICT In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., Of the September 11,2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro’s Properties, LLC dAitZi Northern Lights Resort ORDER AND MEMORANDUM GRANTING APPEAL AND REVERSING DECISION Court File No. 56-CV-14-2852 On April 20, 2014, the above-entitled matter came before the undersigned Judge of District Court at the Otter Tail County Courthouse in Fergus Falls, Minnesota, for Oral Argument in this Administrative Appeal, pursuant to the parties’ cross-motions for Summary Judgement upon the parties’ stipulated record. Attorney Matthew J. Loven appeared on behalf of Appellants, Phyllis Freeman and the Dead Lake Association. Attorney Jason J. Kuboushek appeared on behalf of Respondent, the Otter Tail County Board of Adjustment. Counsel for each party submitted an initial brief and a reply brief, and counsel for each party argued the appeal orally. Based on the stipulated record of the proceedings below, the arguments of counsel, and the applicable law, and having been fully advised in the premises, the Court now issues the following: ORDER IT IS HEREBY ORDERED THAT 1. Appelants’ Motion for Summary Judgment is GRANTED, and the September II, 2014 decision of the Otter Tail County Board of Adjustment to grant Variances to Pro’s Properties, LLC dJhl& Northern Lights Resort is REVERSED. 2. The Application for Variance by Pro’s Properties as published in the August 22,2014 Notice of Hearing for Variance is remanded to the Otter Tail County Board of 1 Dead Lake Assoc, v. Bd. Of Adj. Court FOe No.: 56-CV-14-2852 Adjustment for hearing and consideration of the provisions of Minn. Stat. § 394.27, subd. 7, and the Otter Tail County Shoreland Management Ordinance. 3. Upon remand, the Board of Adjustment must limit its inquiry and discussion to the issues raised in earlier proceedings on June 11,2014, and September 11,2014. 4. The attached MEMORANDUM is incorporated by reference herein. IT IS SO ORDERED. Dated this 16th day of July, 2015. Court File No. 56-CV-14-2852 Judge of District Court 2 ' \ Dead Lake Assoc, v. Bd. Of Adj. Court Fde No.: 56-CV-14-2852 MEMORANDUM The Otter Tail County Board of Adjustment (hereinafter “the Board”) granted a variance to Pro’s Properties, LLC d/b/a Northern Lights Resort (hereinafter “Pro’s Properties”) to expand its resort, located on the shore of Dead Lake, in deviation fiom the density limitations imposed on that lake by the applicable zoning ordinance. Appellants, who are owners of lakeshore property on Dead Lake, now challenge the Board’s decision to grant the variance, arguing (1) that the Board improperly granted the variance based on legislative policy determinations which it lacks the authority to impose, and (2) that the facts provide no support for a finding of practical difficulties specific to the property in question, which is necessary to suj^rt the issuance of a variance. The Court agrees with Appellants, and it reverses without remand. FACTS I. Northern Lights Resort The Northern Lights Resort is located on Dead Lake in Otter Tail County, Minnesota. The Northern Li^ts Resort property currently consists of 7.5 acres and has eight campsites suitable for recreational vehicles (RVs) and 10 cabins. AR 0270. The resort property also has one home serving as the residence for Cheryl and Vince Prososki, the owner-operators of Pro’s Properties. The current property is zoned for a maximum of five dwelling units by land area, but has 19 dwelling units. AR 0030-0038. II.Plan for Expansion Pro’s Properties identified a 6.3-acre tract of land adjacent to the southern edge of the existing Northern Lights Resort. Pro’s Properties expressed interest in purchasing that 6.3- acre tract in order to expand the resort. Pro’s Properties had not yet purchased the 6.3-acre parcel 3 / ' Dead Lake Assoc, v. Bd. Of Adj. Court FUe No.: 56-CV-14-2852 of land, as it was waiting for favorable outcomes from its Conditional Use Permit (CUP) application before the Otter Tail County Board of Commissioners and its variance application before the Otter Tail County Board of Adjustment Pro’s Properties initially planned to add IS new RV campsites to their expanded resort. Of the 15 RV campsites, 13 were to be placed on the new 6.3-acre tract while two were to be placed on the existing Northern Lights Resort property. Pro’s Properties developed a three-phase expansion plan, to take place over the course of four years. Phase One of this expansion plan consisted of placing eight RV campsites on the 6.3-acre tract, and a centralized dock system with 12 boat slips on Dead Lake. Phase Two consisted of an additional five RV campsites on the 6.3- acre tract, for a total of 13 campsites on the new 6.3-acre tract. Phase Three consisted of two new campsites on Northern Lights Resort’s existing property. AR 0012. The addition of 15 new campsites total would result in 34 total dwelling units on the 13.8-acre combined property. Each RV campsite was planned at 2,400 square feet, including parking requirements, and each campsite would have water, electricity, and sewer connections. Each campsite would have an RV pad consisting of a Class 5 gravel base covered with a layer of pea rock. AR 0030-38; AR 0223. On May 14, 2014, the Otter Tail County Planning Commission approved a recommendation that Pro’s Properties be granted a Conditional Use Permit for 13 RV campsites and six centralized boat slips, subject to Pro’s Properties obtaining the necessary variances from the Board of Adjustment. AR 0016. On May 20, 2014, the Otter Tail Coimty Board of Commissioners (Commissioners) granted Pro’s Properties a CUP for 13 total campsites and 12 centralized boat slips. The Board of Conunissioners cited “the economic benefits resorts bring to Otter Tail County” as a reason to grant the CUP. The CUP was conditioned on the Board of 4 (• ” r ■ Adjustment granting the necessary variances. AR 0063 (implication for Variance,-noting final CUP approval jfrom Otter Tail Coimty Board of Commissioners). Dead Lake Assoc, v. fid. Of Adj. Court File No,: 56-CV-14-2852 m. Relevant Zoning Ordinances The Otter Tail County Shoreland Management Ordinance (hereinafter “Shoreland Management Ordinance") regulates land use and developmoit within 1,000 feet of the ordinary high water line of all lakes in Otter Tail County. Otter Tail County, Minn., Shoreland Managemrat Ordinance § lll.l (Aug. 1,2013). The Shoreland Management Ordinance requires that single-family residential lots in Tier 1 riparian land near Natural Environment Lakes' be at least 80,000 square feet, while non-ripariah lots must be at least 160,000 square feet. Otter Tail County, Minn., Shoreland Management Ordinance §111.3 (Aug. 1, 2013). On Natural Environment Lakes, Tier 1 land consists of the first 400 feet fi-om the ordin^ high water line. Tier 2 land consists of the next 400 feet, and so on. Otter Tail County, Minn., Shoreland Management Ordinance § IV. 1 l.C.l.a.2 (Aug. 1, 2013). The Shoreland Management Ordinahce contains provisions governing cluster developments, including resorts. Otter Tail County, Minn., Shorelaiid Management Ordinance § IV.ll (Aug. 1, 2013). Land governed by the Shoreland Management Ordinance and developed as a cluster development may contain up to 1.5 times the maximum density for single-family residential use on Tier 1 and Tier 2 land. Otter Tail county, Minn., Shoreland Management Ordinance § rV.l l.C.l.a.5 (Aug. 1,2013). Cluster developments, including resorts, are entitled to permanent watercraft beaching, docking, or mooring infiastructure, but are limited to one siich space for each allowable dwelling unit bh Tier 1 land. .' Dead i$ classified as a Natural Environment Lake under the Minnesota D^artment of Nature Resources. Lake Shoreland Classifications List by County, MINNESOTA DEPARTMENT OFNATURAL RESOURCES, htq>'7/files.diir.state.inn.us/wateis/watenngmt_sectio^shoreland/ basins_shoreland_classifications.pdf (last visited July 16,2015). Neither party contests that Dead Lake is a Natural Environment Lake. j 5 ! ;1s r ' Dead Lake Assoc, v. Bd. Of Adj. Court File No.; 56-CV-14-2852 Otter Tail County, Minn., Shoreland Management Ordinance § IV.l l.C.l.f (Aug. 1, 2013). The Shoreland Management Ordinance does not contain any provisions for commercial density. The Minnesota Department of Natural Resources (DNR) has similar shorleand management regulations. The DNR requires that single-family residential lots on Natural Environment Lakes be at least 80,000 square feet; this applies to lots on riparian and non-riparian land (Tier 1 and Tier 2-5 land under the Otter Tail County Shoreland Management Ordinance). Minn. R. 6120.3300, subp. 2a(A) (2014). The DNR allows for a density multiplier of 2.0 to be applied to Tier 2 land for residential development. Minn. R. 6120.3800, subp. 5(A) (2008). For conunercial planned unit developments, recreational camping imits are assumed to have a “floor area” of 400 square feet, which allows for approximately three recreational camping units for each single-family residential lot; these are then subject to appropriate density multipliers depending on the location of the land in relation to the lake. Minn. R. 6120.3800, subp.6 (2008). IV. First Application for Variance On May 23,2014, the Otter Tail County Board of Adjustment issued a Notice of Hearing for Variance for Pro’s Properties’ variance request. Pro’s Properties submitted their original 15- campsite, 15-slip plan. Pro’s Properties requested the following: 1. A variance from the required 30-foot bluff setback to permit the use of an existing trail as a means of access to eight of the proposed campsites. 2. A variance from the required 30-foot bluff setback for four of the proposed campsites. though no pad, RV or stractures would be placed within 30 feet of the bluff 3. A variance from the required 50-foot buffer between trails and property lines to permit the use of an existing trail as a means of walking access to the lake. 6 r Xv' Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-I4-2852 4.. A variance fifom the Tier 1 density calculation across the 6.3-acre tract for two of the four seasonal campsites. 5. A variance from the Tier 2 density calculation across the 6.3-acre tract for 10 of the 11 seasonal campsites. 6. A variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3-acre tract for 13 of the IS boat slips. * The notice did acknowledge that the Board of Commissioners had approved a CUP for 13 campsite and 12 boat slips, rather than 15 campsites and IS boat slips. AR 0069. V. June 11,2014 Boaird of Adjustment meeting Appellant Dead Lake Association wrote a letter to the Board of Adjustment prior to the June 11, 2014 meeting, detailing their opposition to Pro’s Properties’ variance request. Appellants cited Dead L^e’s status as a Natural Environment Lake and the . risk of damage that expansion of the resort would entail, especially due to the increase in boat trafhc. Appellants were also concerned by the. fact that the project *Tar exceeds the recommended density for expansion,” and expressed fear of setting a precedent allowing other landowners to over-develOp their properties. Appellants also pointed out that the variance would run with the land,^d even if Pro’s Properties used “best practices” for their use of the land, subsequent owners mi^t not be SO scrupulous. AR 0070. Several individual Dead Lake property owners wrote to the Board of Adjustment their opposition to Pro’s Properties’ variance request Pocahontas Resort — another resort on Dead Lake — claimed to have been denied their own request for adding campsites, and said that they “would like to believe that the guidelines and regulations that are in effect should apply equally 7 > • Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-I4-2852 to everyone so that consistency of expectation is in effect.” AR 0079. Another property owner expressed concern over the proximity of the campsites and trail to his property. AR 0080. Another owner expressed concern over protecting existing property owners’ investments as well as protecting the environment. AR 0081. On the contrary, the Dead Lake Township sent a letter in support of Pro’s Properties’ variance request, again citing the Resort’s reputation for environmental stewardship, and indicating that the project would be “a good use of the property.” AR 0083. At the hearing, the Board entertained comment from the public. One Dead Lake property owner expressed his opposition to Pro’s Properties’ variance request, citing environmental concerns. A 0224-0226. Another property ownw and member of Appellant Dead Lake Association stated that he was not entirely opposed to the resort expansion, but that he was concerned about the density of the project. This owner also expressed frustration that Pro’s Properties had told the Association that they were looking to add just six new boat slips and solicited the Association’s approval, only to turn around and request a variance for IS boat slips. This property owner suggested to the Board that a smaller, less-dense expansion would be palatable. AR 0227. Another property owner spoke against the project, calling the granting of a variance a “can of worms” and speculating that other resort owners would feel entitled similar variances. AR 0231. Cheryl Harris, a former owner of the Northern Lights Resort until 2012 and whose husband Mike Harris was at this point a member of the Board of Adjustment, spoke in favor of the project. She argued that the east bay of Dead Lake where the Northern Lights Resort is located would not meet the definition of a natural environment lake on its own, but recognized that the designation was based on the entirety of the lake. Cheryl Harris stated that there was 8 f ' > Dead Lake Assoc, v. Bd.' Of Adj. Court File No.: 56-CV-14-2852 minimal boat traffic on the lake, and that the proposed expansion of Northern Lights Resort would not lead to a significant increase in boat traffic. Cheryl Harris also argued that the Prososkis were entitled to the requested variance because Northern Lights Resort w^ their livelihood: I guess the thing that gets me is why all these non-resort people get to determine what a resort will be. You know, some are retired, they got what they want. The rest, if they woA for someone else, they have a job. liiey have income. Why do they get to talk against a resort trying to make a living? Cheryl Harris added that the 6.3-acre tract was only good for resort expansion, as the land was not suitable for hunting due to its proximity to other residences and because “the up and down” terrain prohibited trails! Cheryl Harris stat<^ in conclusion that Otter Tail County needed resorts generally for economic development AR 0228-0230. The Board then read the letters submitted, both for and against the variance requests, as summarized above. AR 0232-0244. Applicant Cheryl Prososki^ spoke next in support of the variance request. Prososki stated that the boat slip would be **tucked‘into the bay” and “not in the main part of the lake to impede traffic.” Prososki indicated that the proposal was already granted a CUP by the Board of Commissioners, and that there would be plenty of .open space to maintain the natural environment. Prososki added that Otter Tail County’s regulations are more stnngent than those of other counties, and that Northern Lights Resort was at a ccpipetitive disadvwtoge vis a vis other r^orts in other counties because of these regulations. Prososki also speculated that the east bay of Dead Lake where Northern Lights Resort is located does not meet the description of a Natural Environment Lake, and that “we prbbably would not need that variance if our bay was separate from the environmental lake.” AR 0244-0245. ' ' ' * -^ The transcript of the meeting indicates that Cheryl Harris spoke at this point, but the speaker refers to the current owners of Northern Lights Resort as “we” rather thaii “they.” Cheryl and Vince PrososfcJ currently own the Resort. Cheryl and Mike Hws wm the previous owners of the Resort. ' -r 9 •ii I 1 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 Bill Kalar then spoke to the Board. Kalar explained that the Board had to rely on case law and state legislation to determine whether there was a “practical difficulty" that merited a variance, but that “practical difficulty*' was not clearly defined. Kalar described how the Otter Tail County Shoreland Management Ordinance limited development density based on both water frontage and land area. AR 0245-0249. Kalar explained that the land within 400 feet of the ordinary high water level was classified as Tier 1 riparian land, while land beyond 400 feet of the ordinary high water level was Tier 2 non-riparian land. Kalar explained that each tier is subject to different development and density regulations, and that the number of boat slips permitted in a development was contingent on the number of dwelling units permitted in a given tract of Tier One land. Kalar further explained that per the Otter Tail County Shoreland Management Ordinance the number of dwelling units permitted on a parcel was based on that parcel’s usable area—features such as wetlands, bluffs, public right-of-ways, and land below the ordinary high water level were unusable land and excluded from density calculations. On a Natural Environment Lake, Tier 1 land requires 80,000 square feet per single-family residential lot, while Tier 2 land requires 160,000 square feet per single-family residential lot. Kalar also explained that the maximum number of dwellings on a parcel of property was 1.5 times the number of single-family residences called for by the Ordinance. AR 0249-0251. Kalar addressed Pro’s Properties’ proposed variance, and indicated that the Shoreland Management Ordinance would permit only three dwelling units on the 6.3-acre tract, with two units on Tier 1 land and just one unit on Tier 2 land. Kalar explained that 12 of the proposed IS campsites would require a variance for 12 dwelling units. With respect to the boat slips, Kalar said that only Tier 1 units were entitled to a slip, so the Board would have to grant a variance for 10 r Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 13 additional boat slips in order for Northern Lights Resort to have all 15 slips as requested. AR 0251-0252. Board member Mike Harris then addressed the Board, stating that he would recuse himself from voting on Pro’s Properties’ proposal because he was the Northern Lights Resort’s previous owner, but that he wished to speak on the matter. Mike Harris stated that he had no financial interest in Northern Lights Resort. AR 0253. Harris addressed each of the variance requests, arguing that the setback variances should be granted. With re^rd to the doisity variances, Harris argued that the Shoreland Management Ordinance was “tougher” than the state regulations, and that Northern Lights Resort was at a competitive disadvantage against other resorts in other counties. AR 0253-0259. Harris said that approving the additional boat slips would help combat aquatic invasive species, on the premise that having a boat permanently assigned to each campsite would discourage guests from bringing their own boats to Dead Lake. AR 0259. Harris concluded his remarks by stating that “I’m very much in favor” of the variance request. AR 0260. Board member Paul Larson acknowledged that the Shoreland Management Ordinance was stricter than the ordinances in other counties, but conceded that the ordinances should be followed. Larson suggested that the density variance as requested was “overwhelming” but that Pro’s Properties was “entitled to a reasonable use” of the land. AR 0260-0263. Board member Larson expressed his overall disqiproval of the proposal because it exceeded the Shoreland Management Ordinance “by so much.” Larson suggested that Pro’s Properties could revise its proposal and return to the Board. AR 0265. II 1 Dead Lake Assoc, v. Bd. Of Adj. CoimFileNo.: 56-CV-14-2852 Otter Tail County Attorney David Hauser explained to the Board that the Board of Commissioners granted Pro’s Properties a CUP for 13 campsites and 12 boat slips. Hauser said that Pro’s Properties would be bound by the limits set in the CUP if the Board of Adjustment granted a variance for 15 campsites and 15 boat slips. AR 0264-0265. In response to a Board member’s question, Hauser stated that because Pro’s Properties’ variance request “exceeded the ordinance by so much, seems like we don’t have any respect for the ordinance if we [approve the variance requests].’’ AR 0266. Hauser said that the County was in a difficult position by having to choose between hurting the tourism industry and encouraging other resort owners to demand similar variances. AR 0268. Board member Steve Schierer asked Kalar what the state residential and commercial regulations would allow in terms of development density, and how they would be different than what the Shoreland Management Ordinance would allow. Kalar stated that he did not have commercial-based calculations on-hand for the Board to consider during that meeting. Kalar stated that Otter Tail County decided in 1992 not to adopt the state’s commercial standard and to adopt a modified version of the state’s residential standard. AR 0267-0268. Mark Steuart, a former Board member, then addressed the Board. Steuart indicated that the rationale in favor of granting Pro’s Properties the variance appeared to be financial. He said that the variance request “is about buying six acres and generating just as much revenue off that [sic] six acres as possible” and that ‘Ihe practical difficulty as far as 1 can see is strictly financial.” He added that Pro’s Properties had not yet purdiased the 6.3-acre tract. When Steuart asked the Board whether other factors had been considered. Board member Schierer stated that “[t]he hardship is because the land does not go straight back and allow a lot of area in the back for their expansion” and that the resort owners “are trying to make a living.” AR 0271-0273. 12 Dead Lake Assoc, v. Bd. Of Adj. Court FUc No.: 56-CV-14-2852 Board member Thomas Lee moved to table further discussion of Pro’s Properties’ variance request to allow Kalar time to give the board additional information, including determination of the number of units permitted under commercial regulations. AR 0275, The matter was ultimately tabled until the September 11,2014 Board meeting, at the request of Pro’s Properties. AR 0090,0095. a VI. Second Application for Variance On August 22, 2014, the Otter Tail County Board of Adjustment issued a Notice of Hearing for Variance for Pro’s Properties’ revised proposal. Pro’s Properties amended their proposal to reflect adding only 12 new campsites and 12 new boat slips, rather than IS campsites and 15 boat slips. Pro’s Properties also withdrew Items 2, 3, and 4 in their entirety from their May 23,2014 variance request. Instead, Pro’s Properties requested the following: 1. A variance from the required 30-foot bluff setback to permit the use of an existing trail as a means of access to five of the proposed campsites. This request replaced Item 1 of their previous variance request. Northern Lights Resort previously requested this variance to provide access to eight campsites. 2. A variance from the Tier 2 density calculation across the 6.3-acre tract for 10 of the 11 seasonal campsites. This request was the same as Item 5 of their previous request. 3. A variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3-acre tract for 10 of the 12 boat slips. This request replaced Item 6 of their previous request. Northern Lights Resort previously requested the variance for “13 of the 15’’ boat slips. 13 Dead Lake Assoc, v. Bd. Of Adj. Court FUe No.: 56-CV-14-2852 The Notice again referenced Pro’s Properties’ CUP for 13 campsites and 12 boat slips, as granted by the Board of Commissioners. AR 0093-0094. VII. September 11, 2014 Board of Adjnstment meeting. As occurred previously, opponents and proponents of Pro’s Properties’ proposed variance sent letters to the Board of Adjustment One property owner who opposed the project requested that Pro’s Properties purchase his property as well, as he believed that “the quality of life on the Lake would be greatly diminished’’ if the variance was granted. AR 0103. One property owner in favor of Northern Lights Resort’s expansion indicated that the expansion would be good for tourism in Otter Tail County, and that the Prososkis deserved the variance as requested because the resort was dieir livelihood. AR 0107-0109. Appellants submitted a letter in opposition to the revised application. Appellants urged the Board to evaluate Pro’s Properties’ application with Dead Lake’s status as a Natural Environment Lake in mind. Appellants indicated that even the revised application requesting a variance for 10 of the 12 campsites was “several times what the ordinance allows[.]’’ Appellants also questioned what practical difficulties justified the variance as requested by Pro’s Properties, and said that “[t]he current request seems to be a purely economic decision.” Appellants stated that they were “not against development” but wanted that development to be “ecologically sound [and] within the OTC Shoreland Management Ordinance as it applies to lakefiront properties.” AR 0115-0116. Cheryl Harris wrote a letter in support of Pro’s Properties’ variance request. Cheryl Harris expressed her disagreement with other property owners that the expansion of the resort would lead to an excessive increase in boat traffic on Dead Lake and pointed out that the lake 14 £>ead Lake Assoc, v. Bd. Of Adj. Court Fite No.: 56-CV-14-2852 could host “everyone with a boat” because of the public access points. Cheryl Harris also indicated that the project should be assessed as a commercial venture, rather than residential: “The whole purpose of the Board of Adjustment is to ‘adjust’ from the Ordinance where the need arises.” Cheryl Harris did acknowledge that the Shoreland Management Ordinance did not contain any provisions for commercial development. AR 0104. The Otter Tail Lakes Country Tourism Association also wrote a letter in support of Pro’s Properties’ variance request. The Tourism Association pointed to the economic gains that the tourism industry in general brings to the county, and that lakeside resorts in particular are critical to economic growth, and warned the Board that Otter Tail County had lost 44% of its lakeshore resorts since 1985. This letter did not address any of the concerns specific to Northern Lights Resort’s proposed expansion, however, nor did this letter explain why Northern Lights Resort in particular merited the requested variance. AR 0111-0112. At the hearing, the Board read the letters both opposing and supporting Pro’s Properties’ request as summarized above. AR 0174-0199. The Board also entertained oral comment from the public. One resort owner spoke in favor of the variance request for general economic and tourism reasons, but did not speak to any reason why Pro’s Properties in particular merited a variance. The resort owner did attempt to quell fears over Northern Lights Resort’s impact on the lake, stating that “as a resort owner, I can tell you that no one is more interested [than resort owners] in preserving our natural resources.” This resort owner admitted that his resort — 14 units on a 48-acre parcel — was “a little bit of [a] different scenario[].” AR 0168-4)171. Bill Kalar provided a hand-written handout for use by the Board. Kalar’s handout affirmatively indicated that Otter Tail County had not adopted the State of Minnesota’s 15 Dead Lake Assoc, v. Bd. Of Adj. Court File No.; 56-CV-14-2852 Commercial Planned Unit Development density standards, but proceeded with calculating the permissible unit density under commercial standards. Kalar’s handout indicated that under the Otter Tail County Shoreland Management Ordinance, Pro’s Properties could only place three total units on the 6.3-acre tract it wished to acquire, while under the state’s residential guidelines would allow four total units. Kalar’s handout indicated that commercial guidelines would allow 11 total imits, S in Tier 1 land and 6 in Tier 2 land. Pro’s Properties’ proposal called for 12 total units, 11 of which would be located in Tier 2 land. AR 0124-136. Bill Kalar explained his handout to the Board, and again advised the Board that Otter Tail County had not adopted commercial density regulations in its Shoreland Management Ordinance.. AR 0199-0203; AR 0212. One unidentified Board monber expressed concern over the precedent the Board might set in granting the variance request. The Board member complained that “the Planning Commission put the [Board] in a real weird spot here’’ in granting a CUP before Pro’s Properties had been granted any variances. The Board member expressed concern that the Board and Planning Commission were not following “our own County’s rules.” The Board member said that “if you are going to change the County rule and go commercial and allow more stuff like this, maybe do that first because it’s a precedent thing.” AR 0205-0206. Another unidentified Board member, in discussing the Planning Commission’s decision to grant the CUP, speculated that the Planning Commission “[was] supportive of, you know, the commercial aspect.” The Board member added that “I’ve said before on this resort, it’s a VCTy well-run resort. It’s an asset to the County.’’ AR 0209. 16 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 Board member Ward Uggerud discussed that resorts offer families .exposure to the environment that they might not otherwise have. Uggerud stated that the environmaital: access that resorts offer was valuable. Uggerud did not say whether he believed that environmental access outweighed the regulations on maximum density, but said in effect that it was worth considering. AR 0210-0211. Board member David Wass expressed his general support for the resort industry b^use resorts generally make lakeshore access more accessible to ''average people,” but that this did not justify deviation from the Otter Tail County Shoreland Management Ordinance; Wass stated • ^ that "I can’t justify going four times the number of camp sites and. six times the number of boat slips. It just seems like we’re ignoring the Otter Tail ordinance. So, on that basis I’m opposed to it.” AR 0213. Board member Uggerud mov^ that the Board grant a variance to Pro’s Properties that would allow for 11 campsites and five boat slips “based on the conformity to the state commercial standards.” Board member Steve Schierer expressed his opposition to Uggerud’s motion “because of the fact that I caimot see having a campsite on a lake and no boat slip.” Schierer elaborated that Otter Tail County is “competing” with Douglas County and Becker County for tourism, and argued that having boat slips available for every campsite was important. Uggerud then withdrew his motion for 11 campsites and five boat slips and moved to grant a variwce to Pro’s Properties for 11 campsites and 11 boat slips. AR 0214-0206. With Uggerud’s motion seconded but not yet voted on,'Otter Tail County Attorney David Hauser informed the Board that each Board member would be responsible for their own vote and how they weighed competing factors. Hauser did warn the Board that granting a variance for 17 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 Pro’s Properties would encourage other applicants to make similar requests of the Board. “The argument will be made [by other applicants], and you will have to address: Well, how is it different or why?” AR 0217. An unidentified Board member then raised the matter of practical difficulty. This Board member stated that he was “still trying to figure out the practical difficulty” warranting a variance, and said that the matter needed to be discussed further. Another unidentified Board member replied, “This is a commercial enterprise within the County. In my IS years on the Board, I have always supported good commercial and lakeshore. And commercial can be used as a practical difficulty now.” AR 0217. Board member Mike Harris, who had recused himself from the discussion as a Board member but remained in the audience, informed the Board that the 6.3- acre tract was “unique” because the water runoff from the proposed campsites would run away fiom the lake because of the bluff on the property, thus mitigating some of the environmental concerns. AR 0218. The Board then voted on Uggerud’s motion to approve 11 campsites and 11 boat slips. The motion passed 3-2, with Mike Harris abstaining. AR 0219. The official minutes from the hearing indicated that It was noted that the variance as approved does provide the owners of the resort with a reasonable commercial use of the property. It was also noted that drainage from the proposed campsite areas does not go directly into the lake. The variance as approved supports the commercial resort industry and recognized the important role resorts have both environmentally and economically. There was some concern if this action would establish precedence for other resorts; however, it was noted that each application should be consider [sic] individually, be given the same consideration and acted upon accordingly. AR 0143 (emphasis added). 18 Dead Lake Assoc, v. Bd. Of Adj. Court File No.; 56-CV-14-2852 On October 6, 2014, Appellants appealed the Board of Adjustment’s decision to Otter Tail County District Court LEGAL ANALYSIS I. Standard of Review Minnesota law provides that if any person is aggrieved by the decision of a board of adjustment granting or denying a variance, that person “shall have the right to qjpeal... to the district court in the county in which the land is located on questions of law and fact.” Minn. Stat. § 394.27, subd. 9. The district court must “review zoning actions to determine whether the zoning authority was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination.” In re Stadsvold. 754 N.W.2d 323, 332 (Minn. 2008) (internal quotations omitted). While the court reviews the Board’s legal and jurisdictional conclusions de novo, it affords the Board deference when determining whether the board’s actions were arbitrary. oppressive or urueasonable. The ultimate determination that must be made is whether the Board’s actions were reasonable in light of the standards set out by the zoning ordinances. VanLandschoot v. City of Mendota Heights. 336 N.W.2d 503, 508 & n.6 (Minn. 1983). “The fact that a court reviewing the action of [the board] may have arrived at a different conclusion, had it been a member of the [board], does not invalidate the judgment of the [board’s] officials if they acted in good faith and within the broad discretion accorded them by statutes and the relevant ordinances.” Id at 509. The court’s review must focus only “on the legal sufficiency and 19 Dead Lake Assoc, v. Bd. Of Adj. Court File No.; 56^-14-2852 Actual basis for the reasons given.” Mendota Golf LLP v. City of Mendota Heights. 708 N.W.2d 162,180 (Minn. 2006). 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 Earthbumers. Inc, v. County of Carlton. 513 N.W.2d 460, 463 (Minn. 1994)). “When the 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,” Id. “A decision predicated on insufficient evidence or arising fi-om a failure to apply relevant provisions of the ordinance [is] arbitrary and capricious.” 2d. II. Legal Background Minnesota law provides that all rural counties may “carry on county planning and zoning activities.” Minn. Stat. § 394.21, subd. 1. The County Board of such a county “has the power and authority to prepare and adopt by ordinance, a comprehensive plan.” Minn. Stat. § 394.23. ThereaftCT, “[ojfficial controls which shall further the purpose and objectives of the comprehensive plan and parts thereof shall be adopted by ordinance.” Minn. Stat. § 394.24. Official controls may include “[zjoning ordinances establishing districts within which the use of land or the use of water ... may be ... encouraged, regulated, or prohibited” and for this purpose the county may be divided into any number of established districts. Minn. Stat. § 394.25, subd. 2. Within each established district, “zoningordinances ... may ... be adopted designating or limiting the location, [size], and the specific uses for which ... structures may be erected or 20 '"■y y Dead Lake Assoc, v. Bd. Of Adj.Court File No.: 5^CV-14-2852 alt^ed.” Minn. Stat § 394.25« subd. 3. The establishment of zoning di.strict.s.and the mles within them “[is] legislative in nature.” Honn v. City of Goon Rapids: 313 N.W.2d 409. 416 (Minn. ; ■ ' ■ ' j ■ 1981), and so zoning ordinances must possess the qualities of valid legislation. In p^icular, all such regulations must ‘tie uniform for each class ofland or building throughout each district, but the provisions in one di^ct may differ fiom those in other districts.” Minn. StaL § 394.25, subd. 3. Whenever official controls are established, a board of adjustment shall also be established. Minn. Stat § 394.27, subd. 1. “The board of adjustment shall have the authority to order the issuance of variances, [review ordinance enforcement decisions], order the issuance of permits ..., and perform such other duties as [may be] required by the official controls.” Minn. Stat § 394.27, subd. 5. The board of adjustment has the excltisive power to issue variances, fiom the official controls. Minn. Stat § 394.27, subd. 7. A variance “means any modification or variation of official controls where it is determined that, by reason of exceptional circumstances, the strict enforcement of the official controls would cause unnecessary hardship.” Minn. Stat. § •-T 394.22, subd. 10. The issuance of variances is not legislative in nature. Instead it is “quasi-judicial,” and so the issuance of variances must follow the generally-applicable legislative policy articulated by the comprehensive plan and official controls. Honn. 313 N.W.2d at 416. It is not appropriate for the board of adjustment to implement a new and different legislative policy throu^ ad hoc deviations. 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 r.' consistent with the comprehensive plan.”). 21 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56^V-14-2852 “Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control.” Minn. Stat. § 394.27, subd. 7. Previously, Minnesota law provided that a variance could be granted upon a showing of ‘particular hardship’ or ‘practical difficulties,’ and the statute defined ‘particular hardship’ but did not define ‘practical difficulties.’ In the case of In re Stadsvold. 754 N.W.2d 323 (Minn. 2008), the Minnesota Supreme Court supplied this missing definition for ‘practical difficulties.’ Id. at 331. The Supreme Court also classified all variances as either “use variances” or “area variances,” holding that the more permissive “practical difficulties” standard applied to area variances, and the more stringent “particular hardship” standard applied to use variances. ]d. In response to In re Stadsvold and another related variance case, the legislature amended chapter 394 to supersede the Supreme Court’s decision. See H.F. 52 Bill Summary (Feb. 17,2011) (and related house sub-committee hearings). Under current law a single “practical difficulties” standard applies uniformly to all variances, and the statute now explicitly defines “practical difficulties” using elements of the old more-stringent “particular hardship” definition, and elements of the old more-permissive “practical difficulties” definition.^ Practical difficulties are now defined to be present when: (1) “the property owner proposes to use the property in a reasonable manner not permitted by an official control;” (2) “the plight of the landowner is due to circumstances unique to the property not created by the landowner;” and (3) “the variance, if granted, will not alter the essential character of the locality.” Minn. Stat. § 394.27, subd. 7. “Economic considerations alone do not constitute practical difficulties.” Id. And practical difficulties only exist where the proposed use would be ^ The new statutory definition also incorporates the operative language of the now-ovemiled decision of the Miiuiesota Court of Appeals in Rowell v. Bd. of Aditistment of the City of Moorhead 446 N.W.2d 917,922 (Minn. App. 1989). 22 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 “in harmony” with the generaily-applicable official control, Minn. Stat. § 394.27, subd. 7. Moreover, these factors should be read so that a variance will be granted only in “exceptional circumstances.” Minn. Stat. § 394.22, subd. 10. These factors are substantially similar to the factors articulated in In re Stadsvold. such that cases decided under those factors are informative for cases to be decided under the new statutory definition.'* The Otter Tail County Board of Adjustment is also restricted in this case by the provisions of the Otter Tail County Shoreland Management Ordinance. The ordinance is largely identical to Minn. Stat. § 394.27, subd. 7, but it also provides that the board of adjustment must consider the following additional factors when issuing variances: (1) “[wjhether the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area;” (2) “[wjhether existing sewage treatment systems on the property need upgrading before additional development is approved;” and (3) “[wjhether granting the variance will be contrary to the public interest or damaging to the ri^ts of other persons or to property values in the neighborhood.” Otter Tail County, Minn., Shoreland Management Ordinance § 'V.6.H (Aug 1, 2013), The ordinance further provides that “[njo variance shall be granted simply because there are no objections or because those who do not object outnumber those who do.” ]d. In construing both the state statute and the Otter Tail County ordinance, it is important to note the role that the separation of zoning authority into legislative and quasi-judicial components serves in maintaining due process and equal protection for landowners. The legislative authority to make zoning regulations is limited in that it must be uniform throu^out each district, and the distinctions it makes must be drawn in advance and in a neutral way. This * No appellate decision has yet been issued in a case arising after the current statutory definition became applicable. See Mutsch v. Cntv. of Hubbard. No. A11-725,2012 WL 1470152, at nj (Minn. App. Apr. 30,2012). 23 »k ’ Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 prevents zoning regulations from treating similarly-situated landowners differently; and it places a check on the ability of the zoning authority to play favorites with particular landowners under the guise of making policy. Conversely, the quasi-judicial authority regarding the application of zoning regulations is limited in that deviations from the general zoning regime can only be approved based on special circumstances particular to a specific parcel of land. This prevents zoning regulations from treating similarly-situated landowners diiferaitly in that it requires a genuine difference to support different treatment; and it places a check on the ability of a zoning authority to play favorites with particular landowners under the guise of making policy because the quasi-judicial authority must follow policy made by others. The separation of zoning authority into two powers, and the limitations on each power, togetha serve to reduce the temptation to restrict the rights of property owners in an arbitrary and non-uniform maimer. Otter Tail County’s legislative zoning authority has established a policy whereby a uniform set of zoning regulations applies to all shoreland in the county, with different rules arising only from the classification of a lake as general development lake, a recreational development lake, or a natural environment lake. See Otter Tail County, Minn., Shoreland Management Ordinance § 111. 1 (Aug 1, 2013). While the legislative zoning authority could impose different rules on the established districts within a single lake classifcation — for instance, by allowing greater density on a large natural environment lake while permitting only lower density on other natural environment lakes — it has not done so. Consistent with the separation of powers provided for in the State’s zoning laws, this is the policy that the Board of Adjustment must follow, even if its members believe that a particular lake should follow differrat density rules or that County-wide circumstances demand a change in policy. 24 Dead Lake Assoc, v. Bd. Of Adj. Court Fde No.: 56-CV-14-2852 III. Practical Difliculties Appellants argue that the Board’s decision to grant Northern Lights Resort’s variance request was invalid for three reasons: (1) that the number of units permitted by the Board derives h'om a density standard which is entirely inapplicable to the land; (2) that the variance permits the expansion of a non-conformity, in that when Northern Lights Resort’s grandfathered property and its undeveloped property are combined the resulting property already exceeds the current density limit; and (3) that the Board failed to properly identify “practical difficulties” particularly faced by Northern Lights Resort, so as to justify granting a variance. While Appellants raise these argumoits as separate challenges, they cite no authority to show that a variance which is otherwise reasonable will be rendered invalid per se because the variance authorized something an inapplicable formula would have authorized or because it authorized something greater than a pre-existing non-conformity. The Court finds these arguments relevant only insofar as the law requires that any variance must be reasonable in light of the official controls from which the variance departs. See VanLandschoot 336 N.W.2d at 508 n.6. Consideration of whether a variance is reasonable in li^t of the official controls is already an aspect of determining whether there are “practical difficulties” permitting the issuance of a vanance. With regard to Appellant’s challenge that non-conforming uses may not be expanded or extended, both the Shoreland Management Ordinance and Minnesota Statutes actually permit the extension of nonconformities through appropriate variances. The Shoreland Management Ordinance permits the Board of Adjustment to issue “variances from the requirements of the Ordinance including restrictions placed on nonconformities. Otter Tail County, Mirm., Shoreland 25 ' Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 Management Ordinance § V.6 (Aug. 1, 2013). Minn. Stat. § 394.36, Subd. 4 permits non­ conformities to continue, “including through repair, replacement, restoration, maintenance, or improvement, but not including expansion.” Minn. Stat. § 394.36, Subd. 4 (2014). This statute allows grandfathered nonconforming uses to continue in their current form without the need for iurtber permission. Expansion of a non-conforming use is not permitted under Minn. Stat. § 394.36, Subd. 4, but Minn. Stat. § 394.27, Subd. 7 gives boards of adjustment the power to issue ‘Variances from the requirements of any official control including restrictions placed on noncomformities.” Minn. Stat § 394.27, Subd. 7 (2014) (emphasis added). Boards of adjustment may grant appropriate variances to non-conformities provided that the rest of the requirements under Minn. Stat § 394.27 , Subd. 7 are met. Therefore, the variance is not invalid simply because it expands a non-confonning use. The Board argues that Northern Lights Resort has shown “practical difficulties" complying with the applicable zoning requirements because Northern Lights Resort has a desire to use its property to promote economic growth and tourism in the area, but the zoning ordinance’s density restrictions prevoit the property from being used as a hi^-density commercial resort. The Board argues that such resorts tend to be good stewards of the land, and that further commercial development of resorts is compatible with the usage in the surrounding area. The Board argues that the amount of current boat traffic in the area is not problematic, and that having more boat slips with permanent boats on the lake would be a benefit — because it would reduce the practice of transient boats entering through the public access points on the lake, a practice which has the potential of increasing the spread of aquatic invasive species. Finally, the Board argues that the expansion of resorts would provide a general societal benefit by allowing more people to enjoy the lakeshore at affordable prices, and that Dead Lake is a good 26 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 candidate for increased density because of its large surface area relative to other natural environment lakes. These arguments are each reasonable points in favor of having a more permissive policy toward cluster development on Dead Lake generally, but they are not arguments that Northern Lights Resort specifically faces practical difficulties. Otter Tail County could pursue this goal of encouraging greater density on Dead Lake by relaxing density restrictions on Natural Environment Lakes generally, or by establishing a zoning district around all or part of Dead Lake (or any other lake) in which greater density is permitted. The Coin! has no position regarding the reasonableness of enacting such a policy through legislation, by modifying the official controls. However, such a move would treat all landowners fairly by appropriately giving all similarly- situated owners the same ability to use their land for denser development And as compared to a policy of lifting density requirements on an ad hoc basis, it would eliminate the incentive for landowners to rush toward further development before other landowners could do the same and exhaust the capacity of the lake to permit development. The Board of Adjtistment lacks the authority to set policy in favor of increased density. It must instead follow the policy already established by those with law-making authority. Simply stated, the Board’s general disagreement with the policy choices made by the official controls is not reason to grant one landowner the special favor of release from the density restrictions imposed by the official controls. Indeed, the Board’s own arguments highlight the danger that favoritism will compromise the rights of landowners and undermine the policies set by others. The Board argues that one of its purposes is to adjust from the officieil controls in order to prevent Otter Tail County from losing the economic benefit of a valuable resort. To the contrary, howevo-, the authority of the Board to issue variances is designed to promote fairness to 27 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 landowners in light of the practical difficulties that may affect particular properties, not to promote the interests of the County by granting special consideration to owners who wish to use their property in ways that would benefit the County’s economic interests as well as their own. The Board argues, however, that granting the variance will not provide a special privilege to Northern Lights Resort because no other properties within the neighborhood have requested a variance for a resort of similar stature. The &ct that no other landowner has requested a special privilege does not mean that a special privilege has not been granted. Should another landowner request a variance for a similar resort, the Board will either have to: (1) deny the request as inconsistent with the official controls, confirming that the Board previously granted a special privilege, or (2) grant the request based on precedent, confirming that the Board has committed itself to nullifying the legislatively-enacted density restrictions. Moreover, the Board’s assertion is not supported by facts on the record and is contradicted by the letter from Pocahontas Resort on Dead Lake opposing the variance for Northern Lights Resort on the grounds that the Board had allegedly denied a substantially-similar request brought by that other resort. See AR 0079. The Board further argues that, in fact, it has the ability to approve uses that are “commercially reasonable,” even though prohibited by the official controls, because section 394.27 provides that “[ejconomic considerations alone do not constitute practical difficulties.” Minn. Stat. 394.27, subd. 7. The Board takes the position that this prohibition on using economic considerations alone implies that some consideration of a policy of economic development is permissible; and the Board argues that since economic development will have some non­ economic benefits, it is not using economic considerations alone. This argument misapprehends the meaning of “economic considerations” in the statute. This does not refer to the macroeconomic impact of the policy choices made in the official controls. Rather, it refers to the 28 > Dead Lake Assoc, v. Bd. Of Adj. Coiiit File No.: 56-CV-14-2852 weight and character of the landowner’s plight due to the circumstances unique to the owner’s property. In general, “economic considerations” means the cost-effectiveness of adapting a construction plan due to the unique attributes of the land while pursuing development that would otherwise be permissible. See, e.e.. Nesvie v. Crow Wine County. 2011 WL 3557871 (Mitm. App. Aug. 15, 2011) (unpublished) (“Economic considerations are within the [question of] whether the practical difficulty can be alleviated by a feasible method other than a variance”). “Economic considerations” are not a question of whether a variance will make it easier for a property to return a profit to its owner or tax revenue to the Coimty. . In addition to its main arguments about economic development, the Board also makes a ; number of references to the specifics of Northern Lights Resort’s property. For instance, the Board argues that a variance is needed due to the bluff on the property. However, Appellants point out that the number of units permitted by the variance far exceeds the number that would be permitted by the official controls even if the 6.3-acre tract were perfectly flat. The Board also argues that because the variance it granted allowed 11 units on Tier 2 land, but no units on Tier 1 land, it follows that ^ch should be allowed a boat slip. But Appellants point out that Ae official controls provide that Tier 2 units are not entitled to any boat slips — only launching ramp facilities are permissible for umts in the second tiec. Otter Tail County, Miim., Shoreland Management Ordinance § IV.l l.C.l.f (Aug 1,2013). The Board also argues that Northern Lights Resort has installed a rain garden and added natural plants to the hill on its current property, and proposes to create impervious surfaces on only 19% of the 6.3-acre parcel; The Board also contends that wat^ on the 6.3-acre parcel does ^ The Otter Tail County, Minn., Shoreland Management Ordinance § lV.8.B.l(Aug 1,2013) provides Uiat the total impervious surface on a property may not exceed 25% from all sources, and 20% from buildings. 29 ■'.1 Dead Lake Assoc, v. Bd. Of Adj. Court FUeNo.: 56-CV.14-2852 not drain directly into the lake. These are characteristics particular to the parcels of land in question. However, these are simply mitigating factors whoi assessing the impact of development. These are not practical difficulties that can be remedied by a variance from the Shoreland Management Ordinance. Board member Uggerud ultimately moved to grant the variance “based on the conformity to the state commercial standards”—standards that were never adopted by Otter Tail County and which deviate significantly from the Shoreland Management Ordinance. It appears that the Board borrowed from the state commercial density standards in order to justify granting the variance to Pro’s Properties. The application of standards not previously adopted by the County is clearly arbitrary. This necessarily leads to the conclusion that either the Board must apply the state’s commercial density standards to future variance applications and strip the Shoreland Management Ordinance of any significance, or that it gave Pro’s Properties preferential treatment. The Board here has failed to make findings supported by the record that show practical difficulties necessary to grant the variance approved by the Board under both the state statute and the local ordinance. The record reflects that the variance was based on cthe conclusion by a majority of the voting Board members that the economic benefit to the County from resort development required the application of the commercial zoning standards for lakeshore density. This decision is contrary to the Otter Tail County Board of Commissioners’ decision to not include the commercial standards in the Shoreland Management Ordinance. This decision is a legislative decision, not appropriate for the Board of Adjustment’s quasi-judicial authority. The grant of a variance to Pro’s Properties must therefore be reversed. 30 Dead Lake Assoc, v. Bd. Of Adj. Court Ffle No.; 56-CV-14-2852 IV. Availability of Remand The Board argues that if the Court finds that the Board did not make adequate findings to support the issuance of the variance, then the Court should remand the matter back to the Board in order to give it the opportunity to make appropriate findings. Appellants, by contrast, argue that remand would be fhiitless, and would only invite an after-die-fact rationalization of the Board’s decision, as well as further litigation. “[W]hen a zoning authority fails to record legally sufficient reasons for [its decision] that are factually supported in the record,” case law provides that “a remand to the zoning authority to articulate its reasons” — “confined to the issues raised in the earlier proceedings” — “is appropriate in limited circumstances.” Johnson v. Cook Cntv.. 786 N.W.2d 291, 296 (Minn. 2010). Hiis is particularly true where the reviewing court announces a new legal standard or determines that the zoning authority affirmatively applied the wrong standard. Id; Stadsvold. 754 N.W.2d at 332; see also Appeal of Brine. 460 N.W.2d 53, 54 (Miim. 1990). In such cases, the zoning authority’s decision may be “premature and not necessarily arbitrary.” Stadsvold. 754 N.W.2d at 333. It is particularly important that a landowner whose variance request is granted under an erroneous standard be given an opportunity to show that the variance can also be granted under the correct standard. Krununenacher v. City of Minnetonka. 783 N.W.2d 721, 733 (Minn. 2010) (“a property owner seeking to utilize her property should not be penalized due to the [zoning autbory’s] application of the wrong legal standard”). However, a court is “not required to remand for adequate findings in all cases reversing a zoning authority.” N. States Power Co. v. Blue Earth Cntv.. 473 N.W.2d 920, 923 (Minn. App. 1991). A court “may decide not to remand where there is a risk that any later findings made by 31 Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-I4-2852 the [zoning authority] would merely rationalize its previous decision.” Id. Courts have also “declined to remand where the [zoning audiority’s] decision was arbitrary because not supported by legally sufficient reasons.” Id. In particular, a court “need not remand where the parties have stipulated to [the] record with no suggestion that additional evidence is available to support the [zoning authority’s] decision.” Id. In rare instances, a court will order remand to a zoning authority, even though it has not directed the application of new or different law, “because the record of a zoning decision is so inadequate that judicial review is impossible.” Interstate Power Co. v. Nobles Cntv. Bd. of Comm'rs. 617 N.W.2d 566, 577 (Minn. 2000). Where the zoning authority simply “feil[s] to discharge its responsibilities in connection with [an] application,” it may sometimes be appropriate to “offer it the opportunity to do so and to develop a record to allow meaningful appellate review.” Earthbumers. Inc, v. Cntv. of Carlton. 513 N.W.2d 460, 463 (Minn. 1994). However, the court may order that the zoning authority “must confine its inquiry to those issues raised in earlier proceedings.” Id. Indeed, in exercising the power to remand, the judiciary generally has power to ensure fairness to the parties who appeared before the zoning authority. Cf. Interstate Power. 617 N.W.2d at 579. The Court concludes that where, as here, the board of adjustment grants an applicant’s request for a variance, but fails to properly support the variance, fairness to the applicant requires that the applicant should not be penalized for the board’s mere failure to do what it otherwise could have done. So long as the evidence brought forth by the applicant in support of the issues raised in the earlier proceedings could have permitted the board to produce a record that would withstand appellate review, the applicant is entitled to seek a more-supported decision on remand. However, fairness to the appellants objecting to the grant of the variance also demands 32 V Dead Lake Assoc, v. Bd. Of Adj. Court FUc No.: 56-CV-14-2852 that they be protected from a post hoc rationalization of the board’s earlier decision. If it is apparent from the record that a remand confined to the issues previously raised could not reasonably permit the board to grant a variance for proper reasons, then the Court must simply reverse. The record here reveals that the Board’s decision was arbitrary. The approved meeting minutes from the September 11, 2014 Board meeting indicate that the variance request was approved because it “supports the conunercial resort industry and recognizes the important role resorts have both environmentally and economically.” The only discussion of the 6.3-acre tract in particular was that the variance “does provide the owners of the resort with a reasonable commercial use of the property” and that “drainage from the proposed campsite areas does not go directly into the lake.” At the June 11, 2014 Board meeting, the vast majority of arguments in support of the variance requests were economic in nature and legislative in scope, with very little focus on what practical difficulties existed for Pro’s Properties in particular. The arguments most closely- focused on Pro’s Properties came from Cheryl Harris, who addressed boat traffic concerns but also argued that the Prososkis were entitled to the variances because Northern Lights Resort was their livelihood. Opponents of the variance, meanwhile, cited environmental considerations. including boat traffic, and expressed concern that granting the variances would set a precedent that would enable other resort owners to over-develop their properties to the detriment of the county’s lakes. Board members disinclined to grant the variance request expressed concern over the magnitude of the deviation from the density limits set in the Shoreland Management Ordinance. 33 V Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 In particular, Board member Larson expressed his concerns that the variance requests exceeded the Ordinance “by so much” but that he might support a less-extreme variance. Board member Schierer, on the other hand, asked Kalar to apply commercial density requirements to Northan Lights Resort—even after being informed that the Otter Tail County Shoreland Management Ordinance does not have conunercial density provisions. When Steuart, a former Board member, asked Schierer what factors were being considered other than financial gain, Schierer said that the practical difficulty “is because the land does not go strai^t back and allow a lot of area in the back for their expansion.” However, the size of the lot alone does not justify a variance fi’om density regulations. “The fact that a lot is too small for development under existing zoning laws is not a “circumstance unique to the property.” Graham v. Itasca Cntv. Planning Conun'n. 601 N.W.2d 461,467 (Minn. App. 1999) (Where the owner of a grandfathered non-conforming lot exceeding density restrictions purchased an adjacent lot for purposes of expansion, but was barred by the zoning ordinance. neither the application of the density restrictions, nor the owner’s mistake of law concerning them, constituted circumstances unique to the property.). Similarly, at the September 11, 2014 Board meeting, the majority of arguments in favor of granting the variances were either plausible but legislative, or imduly emphasized financial gain. Proponents of the variance stressed the need for Otter Tail County to protect its tourism industry. Opponents again cited environmental considerations and their concern about setting a precedent for future over-development Board members in support of the project consistently cited the economic gains. One unidentified Board member stated, “I’ve said before on this resort, it’s a very well-run resort. It’s an asset to the County.” Board member Schierer pushed for granting the variance requests because Otter Tail County is “competing” with Douglas County 34 •* Dead Lake Assoc, v. Bd. Of Adj. Court File No.: 56-CV-14-2852 and Becker County for tourists’ business. When an unidentified Board member stated that they were “still trying to figure out the practical difficulty” and tried to get the Board to discuss the issue, another Board member replied, “This is a commercial enterprise within the Coimty. In my 15 years on the Board, I have always supported good commercial and lakeshore. And commercial can be used as a practical difficulty now." The only discussion on the record about the land itself, as opposed to commercial opportunities and general policy considerations, came fi-om Mike Harris, who indicated that the bluff on the 6.3-acre tract would force nmoff from the campsites away from Dead Lake, and that this was sufficiently “unique” to merit the variance. There was no further discussion here or earlier. The Board’s written decision simply notes that it was stated, without explaining its connection to the variance. The discussion before the Board of Adjustment at the two hearings did include mention of issues relevant to the definition of practical difficulties now found in Mirm. Stat. § 394.27, subd. 7. Discussion of these issues was precluded by repeated emphasis of the economic development policy implications of density limitations for lakeshore resorts in Otter Tail County. Without further discussion, it is not possible to identify how these factors might justify such a significant departure from the density limitations enacted by the County Board of Commissioners in the Shoreland Management Ordinance. This Court should not substitute its own analysis of these issues to reach a conclusion that they could not reasonably permit the Board to grant a variance to Pro’s Properties. The applicants should be given an opportunity to have a decision made on the proper quasi-judicial considerations appropriate for the Board of Adjustment’s decision. These considerations are found in Minn. Stat. § 394.27 and the Otter Tail County Shoreland Management Ordinance. In order to assure fairness to Appellant Dead Lake 35 Dead Lake Assoc, v. Bd. Of Adj. Court File No.; 56-CV-I4-2852 Associadon, the further discussion and review must be limited to issues raised at the two earlier hearings. This will prevent an after-the-fact rationalization of the Septembo’ 11,2014 decision. CONCLUSION The Otter Tail County Board of Adjustment, in granting Pro's Properties its variance request, did not properly consider relevant factors under the Shoreland Management Ordinance or Minn. Stat. § 394.27, Subd. 7. Remand to the Board of Adjustment is appropriate in order to give Pro’s Properties the opportunity to have their variance request heard and considered under the proper legal framework. Reversed and Remanded. 36 Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Thursday, April 23, 2015 1:49 PM Jeff Hentges (jhentges@mcit.org) David Hauser; Bill Kalar 14PE0164; Dead Lake Association v. Otter Tail County 4 23 15.pdf; Appellants Reply.pdf; County's Reply.pdf From: Sent: To: Cc: Subject: Attachments: Good afternoon Mr. Hentges, Please see the attached report and memoranda. Feel free to contact me with any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonkfSjirc-law.com ^0. www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 Iverson Reuvers Condon ATTORNEYS AT LAW (E April 23, 2015 Mark J. Condon Jon K. Iverson Paul D. Reuvers Jason J. Kuboushek Jason M.Hiveley Susan M.Tindal Stephanie A. Angolkar Andrea B. Smith Nathan C.Midolo Brian P. Taylor Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 RE: Dead Lake Association v. Otter Tail Coimty Claim No: 14PE0164 Our File No. 200.1332 Dear Mr. Hentges: Since our last report, we have filed our Reply brief, received the Dead Lake Association's Reply brief and argued the matter before the district court. As you recall, this is a challenge to a variance granted to the Northern Lights Resort to expand its site as well as its dock slips. The Dead Lake Association has challenged the approval arguing the County failed to prepare adequate findings and the expansion was contrary to DNR regulations as well as the County's own regulations. We acknowledge the Board of Adjustment lacked findings in support of its decision to grant the variance, but do not concede this makes the Board of Adjustment's decision arbitrary and capricious. Rather, we have requested the matter be remanded back for the Board of Adjustment to prepare findings consistent with its approval of the variance. Alternatively, we also argued there was adequate evidence in the record to support the decision. In Dead Lake Association's Reply brief, they spent an extensive amount of time arguing the approval granted by the Board of Adjustment allowed for the expansion of a non-conforming use. They contend this was contrary to state statute and county ordinance. They also argue the BOA's approval was contrary to DNR regulations. Finally, they argue there is no evidence in the record to justify a remand back for the preparation of findings. Rather, due to the complete lack of evidence in the record, they beheve the Coimty's decision was arbitrary and capricious and therefore should be reversed. 9321 Ensign Avenue South I Bloomington, MN 55438 I 952.548.7200 I fax: 952.548.7210 I www.irc-law.com April 23, 2015 Page 2 At the Court hearing. Judge Senyk explained his prior role as County Attorney and Assistant County Attorney. He also indicated he had read all of the motion papers but had not read the entire Administrative Record. At the onset of Attorney Loven's argument. Judge Senyk had a lot of questions for him regarding the non-conforming use and the DNR regulation arguments. Ultimately, Attorney Loven conceded the County was allowed to grant the variance for a non-conforming use and the County did not need to follow DNR regulations because it had approved its own shoreline regulations. Attorney Loven continued to argue the lack of evidence in the record supported a complete reversal of approval. During my argument, 1 briefly touched on the non-conforming use and DNR regulation arguments, but instead focused upon the evidence in the record supporting the grant of the variance. 1 indicated there were comments made during the hearings which would support the practical difficulty factors laid out in the statute. Accordingly, the Board of Adjustment's decision should be upheld or at the very least the matter should be remanded back for the preparation of formal findings. As 1 indicated in my prior report, the evidence supporting this approval is very weak. We had been informed by County staff this would be a difficult appeal and we still believe that to be the case. Based upon Judge Senyk's questioning during the hearing, I believe it is likely the Court will remand this matter back to the Board of Adjustment for the preparation of findings. The Court, however, would retain jurisdiction over the matter and we expect the Dead Lake Association to bring the new findings back before the district court for another hearing. I will report back when we receive Judge Senyk's Order which should be issued before the 90-day deadhne. Please feel free to contact me with any questions. « ■; April 23, 2015 Page 3 Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952) 548-7206 E-mail: iasonk@irc-law.com .i David Hauser, County Attorney Bill Kalar, Planning & Zoning Administrator cc: f . • * ,v- .1 From:Rinke Noonan 3206563500 04/10/2015 15:13 #890 P.004/021 Case Type; Other Civil DIS TRICT COUR TS'TATE OF MINNESOTA COUNTY OF OIl'ER TAIL SEVENTH JUDICIAL DISTRICT % In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., Court File No. 56-C'V-l4-2852 of the September 1 1,2014 Decision of the Otter Tail County Board of Adju.stment to Grant Variances to Pro’s Propertie.s, LLC d/b/a Northern Lights Resort % RESPONDENT’S MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT APPELLANTS’ REPLY TO % % INTRODUCTION The Otter Tail County Board of Adjustment (BOA) makes five basic ai-gumcnts to which we here respond: That Despite the Fact That the BOA Made No Findings, the Court wShould Remand So That the BOA Can Attempt to Make Findings That Would Ju.stify the Variance. In Part I of this Memorandum, we show that the record contains no facts that could (1) be used to justify a variance. There is nothing in the record to support a conclusion (hat putting 30 dwelling units in an area zoned for 8 is consistent with the purpose of the Otter ’I'ail County comprchen.sive plan or Otter Tail County Zoning Ordinance (the “'OTC Ordinance”). There is nothing in the record that remotely supports the suggestion that a four-fold departure from the density requirements is justified by practical difliculties. Consequently, a remand would be a futile act, inviting the BOA to repeat its attempt to grant a variance which llagrantly departs from the siandard.s of tire OTC Ordinance. Page I on 7|I719»-OOO.V:0).<{UO/I) From:Rinke Noonan 3206563500 04/10/2015 15:14 #890 P.005/021 That the record is inadequate to support the conclusion that Pro’s Properties is seeking unlawfully to expand a non-conforming use. On the contrary, in Part H of this Mcinoranduin wc show that, the County’.s own (2) staff determined that the property exceeds the currently allowable number of units (19 instead of five), and delivered that conclusion to the BOA in the record at AR-0038, The staff used this fact to determine the total allowable number of units (eight) which the properly may possess without a variance. BOA is claiming, without a shred of authority, that Appellant cannot argue in favor of a determination made by the Otter Tail County zoning .staff itself on the record. That the OTC Ordinance actunity allows the expansion, because some of the expansion is occurring in the second tier. in Part Ill-A, we show that, in fact; the OTC Ordinance itself directly imposes (3) restrictions on the second tier. Developing in the second tier doe.s not entitle a property (jwner to a density bonus under the OTC Ordinance. In fact, quite to the contrary, the Otter Tail County Board and stai'f itself properly ruled that the use could not be permitted unless the property owner could prove up an entitlement to a variance. That since Dead Lake is a “large lake” it is capable of handling intensified use. In Pan Ill-B, we show' that this argument is negated by the fact that Dead Lake is (4) designated as a Natural Environment lake. The suggestion that the surface area of a lake would somehow justify a density bonus is completely contrary to Minnesota DNR and MPCA regulation of such lakes, contrary to limnological science, and totally contradicted by the OTC Ordinance, which applies its zoning ordinance uniformly to alt Natural Environment lakes. Page 2 of'17I l7l98.()Ofi.V?,OI8M()/!| FromiRinkG Noonan 3206563500 04/10/2015 15:14 #890 P.006/021 That a Variance should be granted because surface water from the'property allegedly flows uphill and away from the lake, instead of flowing into the lake. In Part IIl’C, we .show that this contention that surface water somehow fiows away (5) from Dead Lake is completely unsupported by any .scientific or other creditable evidence and is, regardless, completely irrelevant to a variance. (6)That the fact that there is a bluff along the property .should somehow justify a variance. In Pari IIl-D, we show that,presence of a bluff is not a justification for quadrupling the allowable den.sity on the property. We conclude our respon.se by pointing out that what tlie BOA has argued here is completely contrary to fundamental zoning principles that require government to adopt uniform policies and ■t;uniform zoning regulations, and then to adhere to them unless justified by uniformly applied exceptions. The arbitrary and capricious application of zoning regulations threatens an important liberty protected by constitutional principles: that the regulation of properly musl be uniformly applied so that those who buy, sell, and use property are not beholden to the: government'to use their property based on the whims of public officiaks. ARGLIMENIS THIS COURT SHOULD DENY BOA’S REQUEST TO REMAND FOR NEW FINDINGS, BECAUSE THE RECORD CONTAINS NO EVIDENCE WHICH WOULD JUSTIFY A VARIANCE. boa’s argument essentially concedes that the BOA has not made tindings which can support a variance. While its memorandum notes the “reasonabiene.ss” of the BOA’s decision is I. ""measured by the standards set out in the local ordinance,” fd; see also Roach v. Coimly of Becker, 2012 WL 6097133 *5 (2012) ("‘'fhis court asscs.scs the reasonableness of the decision against the standards indicated by the ordinance,”), the memorandum fails to show where in the Piige3 of 17117l9X-()00:V2011tl40/l') ! 04/10/2015 15:15 #890 P.007/021FromiRinke Noonan 3206563500 record Ihe BOA considered the standards set out under Section V, subpart 6 (H) 1-4 of the OTC Ordinance, The memorandum correctly recognizes Pro's Properties' "heavy burden to show the approval is appropriate, since a variance allows property to be used in a manner forbidden by thei zoning ordinance”. RespondetU’s Mentorundiun of Law, p. 7. Yet, the memorandum does not ai'ticulaie how this “heavy burden” was met. T'he memorandum correctly points out that tlte decision of the BOA will be “reversed” if it has no “rational basis”, yet fails to articulate facts in the record to support a rational, or even a legal, basis for the variances. Id. Finally, the memorandum cites the si.\ (6) mandatory Slad.svold factors articulated by the Minnesota Supreme Court, and essentially concedes that these factors were never addressed by the BOA. Id\ see also In re Sladsvohf, 754 N.W.2d 323, 331 (Minn. 2008). Required findings are necessary because the decision to grant a variance is a quasi­ judicial decision. Big Lake z!.y.vVt v. Saint Louis Cnty. Planning Comm'n, 761 N,\V.2d 487, 490 (Minn.2009). Findings must “articulate the reasons for its ultimate decision” and are necessary to facilitate judicial review. In re Siadsvold, 754 N.W,2d 323 (Minn,2008). There are circumstances where a revievving court is justified in remanding for new findings, but none of those circumstances ai‘c present here. For example, where the record contains facts which might reasonable justify a variance, but it appears that the authors of the decision simply exercised insufficient care or lacked sufficient sophistication to reduce those findings to the printed page, the reviewing court might reasonably remand for findings to further the ends of ju.sticc. Or, where the decision on remand establishes a new legal principle not previously applied, a remand might allow a zoning authority an opportunity to resolve materia! disputed facts applying the correct legal standard. Page 4 of 17117lW}0O3A'!0lfil=)O/lj From:Rinke Noonan 3206563500 04/10/2015 15:15 ■ #890 P.008/021 :• Here, the record fails to disclose facts which could support a grant of a variance, a ;■ remand is fruilleis. ancl the appellate court is ju.stified in reversing with instructions to vacate. ; BECA of Alexandria L.L.P. i>. Cnty. Of Douglas ex realDe. Of Comm ’rs., 607 N.W,2d 459, 464 (Minn, App. 2000j (;‘We are not required to remand where a zoning authority’s CUP decision is arbitrary because it i,s unsupported by legally sufficient reasons.”); Roach v, Coimiy of Becker, 2012 WL 6'097133 *3 (2012) (“The variance order wa.s clearly arbitrary and capricious. As a result, w'e reverse and vacate the variance order.”). Variances are permitted only when they are in harmony with the general purposes and . intent of the ordinance and when the variances are consistent with the comprehensive plan. See Minn. Slat. Ann. § 462.3.57 subd. 6(2). The propo.sed variance would locate 30 dwelling units on a properly where the plan and ordimmee limits the owner to 8. 'The result is a property that vvould have four limes the units authorized by ordinance, a result which is totally inconsistent with both the comprehensive plan and OTC Ordinance. In lact, the BOA did not seek to justify the variance on the grounds that the property is unique or face.s exceptional circumstances. Rather, the BOA boldly proclaims that it is out of sympathy for the properly owners, and seeks to override the central purpose of the OTC Ordinance to further economic goals. The variance undermines the very purpose of the OTC Ordinance, which is to regulate the use and orderly development of shorelands in Otter Tail County, See OTC Ordinance, Section 1, subpatt 2. 1, i; While the BOA’s brief treats thi.s as a mere implementation of an authorized use, in fret, , it is a prohibited u.se - a cluster development that tails to meet mandatory conditions.: Under Minnesota law, a clustered development with increased density may not be authorized in a .shoreland zone tmle.ss the zoning ordinance .specifically allows planned unit developments and identifies the land use districts in which they are an allowable conditional use in the official Page 5 of 171'I7I‘)({-000:</20I8I-40/|| From:Rinke Noonan 3206563500 04/10/2015 15:16 #890 P.009/021 - controls and On a zonitig map. See Minn. R. 6120.3800. ’I’he DOA i.s wrong when it suggests that putting 30 dwelling units in a location zoned for 8 is a mere exten.sion of a permitted u.se.That would be like claiming an apartment building in single family residential zone can be accomplished by variance, because 45 individuals make their .single residence in the apartment building. Under Minnesota law, the BOA may not permit as a variance any u.se that is not allowed under its zoning ordinance for property in the zone where the affected person's land i.s located, and hence, no findings can justify the BOA's decision. Even if the above criteria could be met, the BOA would still have to determine that the owner meet.s the practical difficulty criteria, and this they simply cannot do. “Practical difficulties,” as used in connection with the granting of a variance, among other things means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. See Minn, Stat. § 394,27, Subd. 7. The inability to fit 30 units in a property where 8 are allowed has nothing to do wdth the specific characteristics of this property. Any property with thi.s acreage, no matter what its characteristics, is not targe enough to accommodate even 9 units, let alone 30. If the BOA’s decision is alTirmed, or if it were allowed to concoct reasons to justify the variance, every other property on Dead Lake could properly claim to be entitled to the .same variance, and the result would be a lake with over four times the density as contemplated by the Ol’C Ordinance and comprehensive plan. Moreover, (he practical difficulty here is a creali<m of the property ovvner. The reason for the variance is because Pro’s Properties has made the choice to e.xpand onto properly which is Page 6 ot’17|17H>8-00CO/20)SI-(0/)| FrorniRinke Noonan 3206563500 04/10/2015 15:16 #890 P.010/021- inatieqliaie under law for the proposed number of addi tional units. But for the proposed expansion there is no need for the variances. This scenario has already been addressed by Minnesota courts, which have held that when a property owner requires a variance for a proposed expansion it is the property owner's desire to expand that creates the need for a variance. Graham v. Itasca Coimiy Planning Comm 'n, 601 N.W. 2d 461,467 (1999) (The property owner’s "plight is not due to any circumstances unique to his lot; rather, it is due to his decision to purchase adjacent lots.”). Pro’s Properties has taken a property that is already more dense than allowed, and purchased insufficient acreage to support the development that they desire. HPe inability of the BOA to ju.stify its decision on permissible grounds is .starkly illustrated by its insistence on using an economic rationale for the variance- an economic factor which could support any variance - that the owner will make more money off of the properly if he receives a variance. II. THE RECORD SUPPORTS THE CONCLUSION THAT PRO’S PROPERTIES IS SEEKING TO EXPAND A NON-CONFORMING USE. BOA wrongly cites Big Lake Ass'n v. Saint Louis Cnty. Planning Comm'n, 761 N.W.2d . 487, 488 (Minn. 2009), as barring consideration of the fact that there arc already too many units on the Bxi.sting Resort property, because allegedly it was not raised by objecting property owners. Respondent's Memorandum of Law, p. 5-6. But the BOA ignores the fact that its own planning staff detennined on the record that the property is a non-conforming use, by recording that fact in its report, and by determining the allowable units using the current ordinance standards. See . > Thus our case and the Big Lake case are completely different; In the Big Lake■ Record A-0038. case Saint Louis County treated the property in question tes commercial throughout., A public hearing was called to determine whether the developer should receive a conditional use based upon the conditions contained in the County Ordinance applicable to commercial property! The record included a determination by the plannittg authority that the property was in a zone that was entitled 1 I t7!yS-0lK)3/2()I«M()/l I Page 7 of 17 From:Rinke Noonan 3206563500 04/10/2015 15:17 #890 P.011/021 10 ihal treatmonl and neither the planning staff, the County Board, nor any party to the case had SLiggestocI anywhere in the record that the property was in fact, residential, and that therel'ore theI den.sity limits applicable to rcsidentially iconed properties should apply.i d'herc is another difi'erencc; the Big Lake case dealt with a conditional use permitIapplication, while here we are dealing with a variance requc.st. When a conditional use permit is applied for, the applicant has a property right in the grant of that conditional use, provided that the applicant can meet the reasonable authorized conditions contained in the zoning ordinance. 1'he circumstances arc entirely the opposite of a variance application. In a variance application, the applicant recognizes that the proposed use is unlawful, and is asking for an exception. Parties who contend that the use is unauthorized, don’t have to prove that, it is the Ibundation of the entire proceeding. In any event, the Supreme Court’s Big Lake decision makes it quite clear that it is suflicicnt (o pre.servc a density challenge when the record contains support for the proposition that density is being challenged: Tlte question of whether a zoning or land use planning issue was properly raised is not alway.s easily determined. Our approach is not to apply a wooden or inflexible formalistic test. Rather, we review the record to determine whether tlie issue was fairly raised for consideration by the zoning authority. The issue does not need to be framed in precise legal terms, but there must be sutTicient specificity to provide fair notice of the nature of the challenge so that the zoning authority has an opportunity to consider and address the issue.......The issue here could have been preserved in a variety of ways including an argument that the proposal did not fall within the definition of a commercial planned unit development or that the proposal violated the density requii'cments for a residential planned unit development, Big Lake Aas'n v. Saim Louis Cniy. Planning Comm'n, 761 N,W.2d 487, 491-92 (Minn. 2009). Page 8 oft 7|17|yS-Ol)O.V20l(iMO/ll Fromflinke Noonan 3206563500 04/10/2015 15:17 #890 P.012/021 The circumstances here are completely different. In Big Lake^ the staff never considered the possibility that the property was residential, and hence the issue was not explored. Here, the Otter Tail County planning staff itself placed in the record the facts that show that the Existing Resort exceeds e.xisting limits, and those limits served as the basis, on the record, of the remaijiing calculations as to the maximum permissible units under the OTC Ordinance, a calculation which went unchallenged by Pro’s Properties. The chart on AR-0038 shows that the planning staff has determined the Existing Resort currently has 19 units, and that it is allowed only five, ff the I30A is claiming that there is no evidence that the Existing Resort is a non­ conforming existing use, then that would lead to the conclusion that the property is being operated in violation of law, which of course is not correct. The record establi.shes that the property has 19 units, but is entitled to only five, this conclusion is used in the Staff Report pre.sented to the BOA. The staffs calculations show that the proposed additional acreage is zoned for a total of three dwelling units, making the maximum allowable units eight, but that Pro’s Properties is asking for authority for 30 units, nearly four limes the allowable density under the OTC Ordinance. The BOA is claiming that Appellants had an obligation to independently prove what the planning authority had already determined. Nothing in the Big Lake case leads to that result. The record establishes that the properly was already 14 units over the allovvable number of units. The BOA itself determined that the expansion could not occur without a variance, and the allowable limits were deiennined by the planning staff and placed in the record at the number eight, exactly at the number that we claim. The suggestion that we somehow waived the right to claim thttt the limit is eight is absurd. Pagc9ofl7|17198-()()O.V20l,SI40n| From.'Rinke Noonan 3206563500 04/10/2015 15:18 #890 P.013/021 l'h(? BOA amnol argue ihat the noucoiil'onnity issue was not properly rai.sed. The nonconformity issue falls squarely under the umbrella of the Association’s density challenges, and further the BOA’s own staflTaisecl this issue in its StatT Report. The jttiiure of tlie nonconformity I issue is raised throughout the record and this Court must therefore address it on appeal. THE FACTS TDENTmED BY THE BOA AS SUPFORTINCi A VARIANCE DO NO r SUPPOliT THE CONCLUSIONS NECESSARY FOR A VARIANCE. 111. A. Second Tier Property. During the discussion by the BOA, members identified certain features of the property which the BOA now sugge.sts might be used to justify a remand, but these tactual assertions are completely irrelevant to legal conclusioms that would be required to justify a The BOA claims that the variance can be justiHcd because dwelling unit-S arc beingvariance. placed in the .second tier, but that assertion is totally contrary to the entire scheme of the OTC Ordinance. A.S a result BOA’s analysis of boat slip density in relation to dwelling units on first tier and second tier shoreiand is completely incon-cct. Respondent's Memorandum ofUrw, p. A’. 'I'he BOA quotes the OTC Ordinance a.s stating, “[t]he number of spaces provided for continuous beaching, mooring, or docking or watercraft must not exceed one for each allowable dwelling unit or site in the //>.s7 tier,” See O'l’C Ordinance Section IV, subpart 11(0 (emphasis added). This is contradictorily followed by the BOA’s statement that, ‘it logically follows that because the BOA did not grant any units in the first tier, but did grant eleven units in the second tier, each of the .vecoMt/tier units should be allowed its own boat slip.” Respondent‘s Memorandum of Law, p. 8 (emphasis added). The BOA’s argument that it 'iogically follows” to grant eleven boat slips to second tier dwelling units actually defies logic. As vvas pointed out by the BOA, boat slips arc only permitted for dwelling units on the first tier of shoreiand property. See AR 00136; see also O'fC Ordinance Section IV, subpart 11(1). This .same fact was illustrated in the Staff Report. See AR Page to oft?liTi^s^ooiu/roniMO/i) From:Rinke Noonan 3206563500 04/10/2015 15:18 #890 P.014/021 0030-0038. Therefore, the tirgiimenl that it “logically follows'’ to grant clock slips to second tier dwelling units is totally itjaccurale. The BOA’s argument that Pro’s Properties should be given a break on dock slip regulations because it proposes placing dwelling units in the .second tier is not an argument for a variance; at best it is an argument for a ?:oning amendment. B. Large Lake Argument. 'I'he fiOA further argues that Dead Lake is a “large lake” capable of handling the rigors of intensified use. Respondent's Memorandum of Law, p. 9. This argument Hies in the face of the Natural Environmental Lake designation itsell’. It is an argument that is completely contradicted by the Minnesota Supreme Court’s prior rejection of attempted intensive cluster development on Dead Lake on the ground that because it has a lot of surface area, it can withstand extra development. Dead Lake Association, Inc., v. Otter Tail County, 69,5 N.W.2d 129 (Minn. 2005). The BOA’s argument represents an unfounded invention of junk lake science. The problem with intensive development of natural environmental lakes such as Dead Lake has nothing to do with their area, it is founded on their depth,' their biogeochernical and ecological characteristics^, and a variety of other characteristics that are not based on lake surface area, Focusing on the physical size of Dead Lake thus avoids the fact that it is classified “natural environment”. See OTC Ordinance, Section 111, Subpart 3. Dead Lake is classilied as “natural environment” because the Minnesota. DNR has identified it a.s shallow vvilh limited environmental capacitie.s for assimilating the impacts of development and recreational u.se. See DNR Shoreland Management § 6120,3000, Subpart 1 and la (A). C. The Bluff Argument. Next, the BOA attempts to argue that the presence of a bluff on the property necessitates the need for a variance. Respondent's Memorandum of Law, p. 10. ' W !.t!.; w w. cii rmu; y s/'W W ndex Juml " hUp://www,sborelandmanageiTicnt,of”/quiok/d,html Page n of'17|l7iy«-OOO.V2()ISI40/l| From:RinkG Noonan 3206563500 04/10/2015 15:19 #890 P.015/021 Thiii is entirely inaccurate. Pro’s Properties original application requested a variance from bluff setbacks to accommodate a proposed walking trail. See AR 0161, lines 6-12. The variance from blulTsetbacks had nothing to do with dwelling unit or boat slip density. In fact, Pro’s Propcilie.s later amended its request to eliminate the need for a variance from bluff setbacks entirely. See AR 0163, lines 1-5. The presence ofn bluff on the property could not possibly justify putting a greater number ol'dwelling units than allowed on the Hat portion of the property, and there is not a shred of evidence in the record to suggest otherwise. D. Promoting Tourism in Otter Tail County Argument. Finally, the BOA’S argument that variances are necessary for “promoting economic growth and tourism” is completely contrary to Minnesota Statutes, In re Sladsvolci, and the OTC Ordinance. Reeipomient ’.v Memoramhnn of Law, p. 8. A variance is not a tool for “promoting econotnic growth and tourism,” or to curb the “loss of resorts throughout the County,” rather a variance is a tool to redress a unique and exceplioiial circumstance on a particular property. See. Minn. Slat. § 394,27, subd. 7; see also Minn. Stat. § 394.22, subd. 10. Economic and commercial considerations do not permit granting a variance, kl\ see also OTC Ordinajice, Section V, subpari 6(C) (“economic considerations alone do not constitute practical difficu]lie.s,”). 'Die BCJA’s memorandum appears to be confused on this point, as it sums up its argument by stating, “Here, the adjustment is required to allow the Applicants to expand their business for the bencllt of the environment and to prevent Otter Tail County from losing the economic benefit of a valuable resort.” Respondent's Memorandum of Law, p. 10. This position is an entirely impermissible basis for granting a variance. A variance cannot stand on a desire to promote the rcsott industry in (Dtter 'fail County. See Minn. Stat. § 394,27, subd. 7; see also OTC Ordinance, Section V, subpart 6; see also Roach v, County of Becker, 2012 WL 6097133 “^3 (2012) (Court Ending that Page 12 on 7 '/ . FromiRinke Noonan 3206563500 04/10/2015 15:19 #890 P.016/021: "good f'aitli” and “professional inibrmation” were inadequate reasons to grant a variance because those “elements” were not addressed iri the county zoning ordinance.). This Court must therefore reject these findings. IV, BOA’SGRANTOF A VARIANCE IJNOERMlNES THli: RIGHTS OF PROFERTY OWNERS TO UNIFORM ZONING ADMINISTRATION ACCORDING TO A LEGISLATIVELY ADOPTEI) ZONING PLAN. Running throughout BOA’s argument seems to be the suggestion that grant of a variance is simply a matter of identifying some feature of the property - any feature at all — upqnvvhich the BOA can hang its hat to claim that the property is not exactly the same as other similarly situated properties. The BOA suggests that if there is a bluff nearby, that supposedly makes the property diflerent and therefore the BOA can grant it a zoning exemption, if water flows .away from the Lake (it actually doe.s not and cannot) then that’s a difference that would justify a variance. Under this approach, any property that can identify even the smalle.st difference from other properties could obtain a variance. That approach is predicated upon a fundamentally Hawed view of the American law of zoning. Zoning is a legislative act in which the zoning authority (here, Otter Tail County) develops zoning use categories (residential, commercial, etc.) identified on a zoning map according to f. legislative judgment. The central feature of zoning is the legislative application of a common plan designed to apply similar land use principles tb legislatively identified categories'of land. Euclid V. Amhlcr Realty, 272 U:S. 365 (1926). When differences in land characteristics justify different zoning principles, the zoning authority does not grant exemptions to applicants on a case by case basis: it must incorporate those differences into its policy implementation by providing for a differentiated zoning. See Minn. Stat. § 462.356, 357: If the zoning authority believes than a particular use .should be permitted, but only upon particular conditions, then the zoning authority f Page 13 of 17|I7I98-(.10(U/3()1XM()/11 From:Rinke Noonan 3206563500 04/10/2015 15:20 #890 P,017/021 legislatively declares what those uses may be, and establishes the conditions which must be met to allow the conditional use, and then identifies the zones for which those conditional uses may be allowed. Minn, Stat. § 462.3595. This adherence to a common plan legislatively adopted prevents zoning from creating arbitrary power in the government to grant or deny beneficial uses of land on its sufferance. [f the zoning authority wants to authorize increased density in a shoreland area, it may authorize that legislatively by defining and identifying land use districts in which cluster developments and planned unit developments are an allowable conditional use and are identified in its official controls and on a zoning map. See Minn. R. 6120,3800, It is fundamentally inconsistent with basic zoning concepts, to grant individual exemptions based on the applications of particular individuals who want to be exempted from legislatively determined zoning rules. simply because the BOA thinks that it would be good for the economy or a particular land owner, or because the BOA does not like the policy judgments that the County has made. When the zoning authority acts legislatively, it must face all of the potentially impacted properly owners at a public hearing and justify the land use classifications on generally applicable principles. Jn Otter Tail County, there are 69! Natural .Environmental lakes, approximately 41% of the lakes in the County. The determination of how many dwelling units will be permitted on a Naiurul Environmental lake is a matter of major importance to a county like Otter Tail because the use of public waters is a matter of importance to homeowners, to the tourist indaslry, to summer residents, and of course to tlie environment. The decision whether to allow coneenlraled development is a matter of major state and local importance, and Minnesota law requires that these decision must be made legisla/ively. When tlie ground rules are adopted, the legislative action Page 14 or 17117iy.S-O0(U/2OI8MO/IJ From:Rinke Noonan ■ 04/10/2015 15:20 - ■ #890 P.018/0213206563500 ' mu.si be justified to all stakeholders on the grounds that they will be fair to all and that all can make . their landcise decisions in reliance on those general principles. The State Shoreland Regulation, art 6120.3100 states; “The development oi'shorelands of public waters must be controlled by means of land use zoning districts which are designated to be compatible with the classes of public waters in part 6120.3000.11,” State Shoreland Regulations establish the maximum densities which a County can allow by lake cla.ssification.-^ 'fhe maximum densities found in the State Shoreland Regulations were intended to .serve as a .starting point for local density regulations. See DNR Shoreland Management § 6120.2800, subpart 1. ("‘Nothing in these standards and criteria shall be construed as prohibiting or di.scouraging a local government from adopting and enforcing controls that are more restrictive." (emphasis added)). Moreover, a local ordinance cannot allow developments which exceed densities established in the local ordinance, except in accordance with the Planned Unit Development provisions envisioned by F’art 6120.3800. /</. : r ‘ When Otter Tail crafted its zoning policy impacting shoreland development on natural environmental lakes, it was certainly concerned with a variety of policy concerns including (a) the quietude offered on Natural Environment lakes, (b) the capacity of Natural Environmental lakes, which are typically much shallow-er and biologically vulnerable than the other lake ciassificatiohs, to handle boat traffic, (c) septic runoff, (d) the inipaci of development on water quality, (e) the risk of phosphorous and nitrate pollution, (1) the maintenance of wildlife and plant populations and (g) the other consequences of concentrated hiinian impacts. ^ Ordinary residential development is controlled by the minimum lot size, minimum shoreland frontage, and setback requirements of Minnesota Regulations Section 6120.3330 . ••. Page 15 of 17 ;.; Fromflinke Noonan 3206563500 04/10/2015 15:21 #890 P.019/021 . Oner Tail County made a legislative determination to resolve these issues by establishing i more restrictive density limits on shoreland. See AR 0267, lines 18-21 (“Otter Tail County cho.se back in 1992, to forgo the commercial .stiindard, li vrtw looked at as Just allowing too many units." (emphasis added)). It is di.singcnuous for the BOA to be suggesting that the OTC Ordinance ticUmlly permits the number of dwelling units permitted by the State law maximum. By choosing to allow lesser density on tier two than the maximum allowed under State law. Otter Tail County granted to lake shore owners throughout the County protection against concentrated development deemed inappropriate, exactly as State law intends. Overriding that judgment, the balance between the toLiri-sl trade and protection of solitude for lake homes, is not a BOA decision - that authority resides solely with the legislative body of Otter Tail County. Under modern zoning law framework, if Otter Tail County believes that property owners on Natural Environment lakes should be able to develop their properties more inten-sively, then it should propose a zoning amendment. By doing that, it would announce to all property owners on 691 impacted lakes that their elected representatives intend to permit intensified development on Natural Environment iake.s in Otter Tail County. CONCIAJSION This particular case illustrates the damage that is done to public confidence in fair enforcement when the BOA can act arbitrarily to grant a deviation from established zoning. Further, the properly involved here was sold to Pro’s Properties by a member of the BOA. While the member of the BOA who sold the properly ultimately recused himself, he made it crystal clear to the other members of the BOA tliat his expectations were that Pro’s Properties be permitted to expand. See AR 0166-0168; see also AR 0253-260. Whether innocent, nefarious, or somewhere in between, the public perception that different rules apply depending upon who you know and Page 16 of 17|17I')8-OI)O.V20I8HO/I| From.'Rinke Noonan 3206563500 04/10/2015 15:21 #890 P.020/021 upon who will be benefiued or harmed follows naturally from the arbitrary exercise of power. Citi/'ens should not have to engage their public officials in an exercise to prove the motivation for arbitrary action - public confidence requires that the regulation of land use be conducted according to its legislatively adopted ordinances. In this case, the record is devoid of any legal, rational, or factual basis for granting variances to Pro’s Properties. The factors on which the BOA formed its basts were either inaccurate, irrelevant or forbidden under Minnesota Statutes and the OTC Ordinance. Remanding this case i.s unnecessary and only invites further problematic analysis by the BOA. The decision of the BOA was arbitrary and capricious and must by vacated. Dated: April 10, 2015 RINKE NOONAN MatlheWt. i,o91174) Suite 300 US Bank I^az^iiuilding 1015 W. St. Germain St. P.O. Box 1497 St. Cloud, MN 56302-1497 (320)251-6700 (320) 656-3500 fax /-—f- ATTORNEYS FOR APPELLANTS page 17 of 17jl?l'>8-l)O0:V2()l«M0/ll From:Rinke Noonan 3206563500 04/10/2015 15:22 #890 P.021/021 . STATE OF MINNESOTA )AFFIDAVIT OF SERVICE BY MAIL AND FACSIMILE) SS COUNTY OF STEARNS ) The below signed, being duly sworn, states that on the 10’*' day of April, 2015, 1 served Appellants’ Reply to Respondent’s Memorandum of Law in Support of Summary Judgment upon Jason Kuboiishek, the attorney for Otter Tail County, the Respondent in this action, by mailing to him a copy thereof, enclosed in an envelope, postage prepaid, and by depositing the same in the post office at St. Cloud, Mimte,sota, directed to said attorney at Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438, and faxing to 952-548-7210, the last known addre.ss and lax number of said attorney. OA Subscl ibed and sworn to before me this 10**’ day of April, 2015. Notary Public STEPHANIE L NEUBAUER NOTAHY public “ MINNESOTA My Commission Expires Jan, 3i, 2019 Iverson Reuvers Condon ATTORNEYS AT LAW ([? Mark J. Condon Jon K. Iverson Paul D. Reuvers Jason j.kuboushek Jason M. Hiveley Susan M.Tindal Stephanie A. Ancolkar Andrea B. Smith Nathan C. Midolo Brian P. Taylor April 10,2015 VIA FACSIMILE Court Administrator OTTER TAIL COUNTY COURTHOUSE 121 West Junius Avenue Fergus Falls, MN 56537 RE: Dead Lake Association v. Otter Tail County Trial Court File No. 56-cv-14-2852 Our File No. 200.1332 Dear Court Administrator: Enclosed for filing in the captioned matter please find Respondent Otter Tail County Board of Adjustment's Reply to Brief in Support of Appellants and affidavit of service. Also enclosed find our motion/ fax fee in the amount of $127.00. Pursuant to Rule 5.05 of the Minnesota Rules of Civil Procedure, I will maintain the originals of these documents in my files, and these originals will be made available to the Court or any party to the action upon request. Sincerely, IVERl VERS CONDDN Ja^n,T Kuboushek Direct: (952)548-7206 E-mail: jasonk@irc-law.com Enclosures Matthew J. Loven (via e-mail and U.S. Mail)cc: 9321 Ensign Avenue South I Bloomington. MN 55438 I 952.548.7200 I fax: 952.548.7210 I www.irc-law.com STATE OF MINNESOTA IN DISTRICT COURT COUNTY OF OTTER TAIL SEVENTH JUDICIAL DISTRICT In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., of the September 11, 2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro's Properties, LLC d/b/a Northern Lights Resort Court File No. 56-cv-14-2852 RESPONDENT OTTER TAIL COUNTY BOARD OF ADJUSTMENT'S REPLY TO BRIEF IN SUPPORT OF APPELLANTS INTRODUCTION This matter involves an administrative appeal of the grant of a variance by the Otter Tail County Board of Adjustment ("BOA") to Pro's Properties, LLC, d/b/a Northern Lights Resort ("Northern Lights") for eleven additional mooring slips and eleven dwelling sites. The variance allowed Northern Lights to have one mooring slip for each dwelling unit on its 6.3 acre parcel. The BOA's decision should be affirmed because it was reasonable, not arbitrary and capricious, and based on substantial evidence in the record. Appellants request this Court overturn the variances granted by the BOA. STATEMENT OF DOCUMENTS Administrative Record, submitted to the Court on February 17, 2015. STATEMENT OF FACTS Refer to: Respondent's Memorandum ofLawin Support of Summary Judgment and in Response to Appellants' Memoranda of Lazo in Support of Summary Judgment, dated March 27, 2015. STANDARD OF REVIEW :Regarding variance requests. County boards of adjustment have "the exclusive power to order the issuance'of variances from the requirements of any official control." Minn. Stat. § 394.27, subd. 7 (2014). Decisions of boards of adjustment are final, but can be appealed to the district court. Minn. Stat. § 394.27, subd. 9. A board of adjustment ’! • r "has broad discretion to grant or deny variances." Kismet Investors, Inc. v. County of Benton, 617 N.W.2d'85, 90 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000). "In reviewing a decision of a‘county zoning authority, a court must 'determine [whether] the zoning authority was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and ... [whether] the y. evidence could reasonably support or justify the determination.'" Nesvig v. Crow Wing i County, 2011 WL 3557871, *2 (Minn. App. Aug. 15,2011), review denied (Oct. 18,2011) (quoting In re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008). "If there is evidence in the record supporting the decision, a court may not substitute its judgment for that ,of the zoning authority, even if it would have reached a different conclusion." Id. (citing VanLandschoot v. dty of Mendota Heights, 336 N.W.2d 503,509 (Minn. 1983))! Variance approvals are held to a more deferential standard than denials and.a court will overturn decisions [of County Boards] only when there is no rational basis for 2 them. BECA of Alexandria, L.L.P. v. County of Douglas, 607 N.W.2d 459,463 (Minn. App.i 2000). "A legally sufficient reason is one reasonably related to the promotion of the public health, safety, morals and general welfare." Id. ARGUMENT THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT USED PROPER ZONING STANDARDS AND PROPERLY EXERCISED DISCRETIONARY AUTHORITY IN GRANTING PRO'S PROPERTIES LLC, d/b/a NORTHERN LIGHTS RESORTS' APPLICATION FOR A VARIANCE. I. Minnesota Statutes Chapter 394 gives counties the power to grant variances when a zoning ordinance may cause "practical difficulties." See In re Stadsvold, 754 N.W.2d at 329. Minnesota Statutes Section 394.27, Subdivision 7 expressly states: The board of adjustment shall have the exclusive power to order the issuance of variances from the requirements of any official control including restrictions placed on nonconformities. 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. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. Minn. Stat. § 394.27, subd. 7 (2014). In variance cases, reasonableness is measured by the standards set out in the local ordinance. Roach v. County of Becker, A12-0132, 2012 WL 6097133, *5 (Minn. App. Dec. 10, 2012) (citing VanLandschoot, 336 N.W.2d at 508 n. 6). An applicant for a variance has a heavy burden to show the approval is appropriate. since a variance allows property to be used in a manner forbidden by zoning ordinance. 3 Kismet Investors, Inc., 617 N.W.2d at 90. Moreover, land use decisions are entitled to great deference and will be reversed by a reviewing court only when the decision has no rational basis. See Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993). The variance has a rational basis and as such was not arbitrary or capricious. A. The boa's approval is not arbitrary or capricious as Appellants allege. Appellants' Memorandum of Law, p. 5. After reviewing the record prepared by county staff, listening to the statements presented at the hearing, examining the applicable ordinance, and reviewing letters from supportive and concerned neighbors, the Otter Tail County BOA determined Pro's Properties, LLC d/b/a Northern Lights Resort's ("Applicant") requested variance would be in line with Otter Tail County's goals. Otter Tail County's Shoreland Management Ordinance ("Ordinance") stated "[t]he number of spaces provided for continuous beaching, mooring or docking or watercraft must not exceed one for each allowable dwelling unit or site in the first tier." Otter Tail County Shoreland Management Ordinance at p. 23. It logically follows that because the BOA did not grant any units in the first tier, but did grant eleven units in the second tier, each of the second tier units should be allowed its own boat slip. Moreover, the record indicates Applicants' variance request is compatible with the surrounding properties and is requested as a result of Applicants' desire to use their property in a manner consistent with the purpose of promoting economic growth and tourism to enhance the productive use of the land. Otter Tail County has been 4 experiencing a loss of resorts throughout the County. AR 0140-0143. The Applicants' i request for a variance provides opportunities for economic development and the proposed project is compatible with the usage of the surrounding area. Id. The BOA: made its decision based upon substantial evidence in the record. Additionally, clients at the Resort have historically been good stewards of the land and the lake (not all are fishermen). Neighbors have spoken to the legitimacy of the project, stating boat traffic is not a problem currently and should not be a problem with this proposal and the resort is not visible from the lake. Id. Furthermore, Dead Lake is a large lake with public access points allowing the lake to be accessible to anyone who may wish to place a boat on the lake at any time. Dead Lake is a large lake (almost 8,000 acres) and the addition of twelve boats that may sporadically be on the lake will have a minimal impact. Even if the concern with increased boat traffic was legitimate, the Dead Lake Association has no right to attempt to control the number of boats on the public lake by limiting the Applicants' presence. For these reasons the BOA's granting of the variance request was reasonable and not arbitrary or capricious. B.The variance decision was not an abuse of discretion and was lawful and proper. The project would not only promote tourism, but would also assist in preventing the spread of AIS, a benefit to businesses and Otter Tail County. AR 0154. Also, Applicants' request includes the use of existing roads and trails and will not require construction of new avenues to reach the resort. This will be an environmental as well as economic advantage. AR 0114. In addition to environmental and economic benefits. 5 the expansion of the Resort presents societal benefits. The resort offers an affordable means for families to avail themselves of natural resources whose preservation is supported by their tax dollars. AR 0203-0222. The high cost of lakeshore prices puts most Minnesotans out of the lake cabin market/thus prohibiting them from accessing our state's natural resources. The best way to restore public access is through resorts. "From a public policy standpoint, the closing of resorts translates directly to the loss of lake access for thousands of hard working Minnesotans." 7d. . /■ These benefits satisfy the legal requirement under Minnesota Statutes Section ■ 394.27, Subdivision 7 stating that economic considerations alone do riot coristitutea "practical difficulties." The purpose of the BOA is to adjust from the controlling Ordinance when riecessity requires. Here, adjustment is required to allow the Applicants to expand their business for the benefit of the environment arid to prevent/ Otter Tail County from losing the economic benefit of a valuable resort. The area has lost far too many resorts in the past 20 years and losing another would be a detriment. . .\ The boa's approval is in harmony with In re Stadsvold, 754 N.W.2d at 332. Therefore; the legal requirements uriderMinn. Stat. § 394.27, subd. 7 are satisfied and the boa's decision is based on a proper legal standard. II.APPELLANTS FAILED TO RAISE THE ISSUE REGARDING NONCONFORMITIES AT THE PUBLIC HEARINGS AND CANNOT RAISE IT FOR THE FIRST TIME ON APPEAL. For the first time on appeal. Appellants argue: the BOA erred in granting the variance because the variance allows an expansion of .a rionconformity.'Appe//fln2s' Memorandum ofLazv, p. 6. First of all, the BOA denies this accusation is true. More 6 importantly^ however, this argument must not be considered because it was not raised during the public hearings or in submissions to the BOA. It is fundamental a party challenging a land use decision must raise the issue directly to the Board or the issue is waived. See Big Lake Ass'n v. St. Louis County \ Planning Comm'n, 761 N.W.2d 487, 492 (Minn. 2009) (failure to raise issue before county board meant it could not be raised on certiorari appeal); Graham v. Itasca County Planning Comm'n, 601 N.W.2d 461, 467 (Minn. App. 1999) (argument regarding variance waived because it was not raised before appeal). The record of the hearing and the administrative record show the Appellants did not raise the nonconforming use issue at the hearing or in any of their submissions. Because they failed to raise the issue below. they cannot claim it now. III.THE BOA MADE ADEQUATE FINDINGS REGARDING "PRACTICAL DIFFICULTIES" AS REQUIRED BY MINNESOTA STATUTES § 394.27, THE OTC ORDINANCE, AND IN RE STADSVOLD. Appellants are correct in asserting the Minnesota legislature requires zoning authorities to establish "practical difficulties" before granting a variance and this authority permits variances "when they are in harmony with the general purpose and intent of the official control." See Minn. Stat. § 394.27, subd. 7; Appellants' Memorandum of Law, p. 10. However, contrary to Appellants' argument, the variance granted by the BOA falls in line with Minnesota law. Appellants fail to recognize that in variance cases reasonableness is measured by the standards set out in the local ordinance. Roach v. County of Becker, A12-0132, 2012 WL 6097133, *5 (Minn. App. Dec. 10, 2012) (citing VanLandschoot, 336 N.W.2d at 508 n. 6). The applicable local ordinance here, therefore, is 7 the OTC Shoreland Management Ordinance. AR 0012-0016. The BOA considered the local OTC Ordinance and applied its provisions, which led to the conclusion the land is best suited for the type of development sought by Pro's Properties in order to better serve the community. AR 0152. The "practical difficulties"standard, which must be met under both the OTC Ordinance and In re Stadsvold, is satisfied based on benefits the community stands to gain given the variance. These community gains satisfy the legal requirement under Mirmesota Statutes Section 394.27, Subdivision 7, stating economic considerations alone do not constitute "practical difficulties." See OTC Ordinance, Section V, subpart 6; In re Stadsvold, 454 N.W.2d at 332. The BOA appropriately adjusts from the controlling Ordinance when necessity requires. Here, adjustment is required to allow the Applicants to expand their business for the benefit of the environment and to prevent Otter Tail County from losing the economic benefit of a valuable resort. This is not a purely economic consideration and thus passes muster. The legal requirements under Minn. Stat. § 394.27, subd. 7 are satisfied and therefore the BOA's decision is based on a proper legal standard and not in conflict with In re Stadsvold. Contrary to Appellants' argument, the BOA's approval is in harmony with In re Stadsvold, which held a decision arising from the application of an improper legal standard would be arbitrary and capricious and therefore must be overturned. In re Stadsvold, 454 N.W.2d at 332. Appellants' Memorandum of Law, p. 12. The six factors which county zoning authorities must address under In re Stadsvold are as follows: 8 i i 1. How substantial the variation is in relation to the requirement; 2. The effect the variance would have on government services; 3. Whether the variance will effect a substantial change in the character of the neighborhood or will be a substantial detriment to neighboring properties; 4. Whether the practical difficulty can be alleviated by a feasible method other than a variance; 5. How the practical difficulty occurred, including whether the landowner created the need for a variance; and 6. Whether, in light of all the above factors, allowing the variance will serve the interests of justice. Consideration of the Stadsvold factors clearly displays the variance is proper. The first factor passes muster as the variation is not substantial. The BOA did not grant any units in the first tier, and thus it is logical to allow the eleven units granted in the second tier to be allowed boat slips. The 6.3 acre tract, part of Government Lot 9, Section 25 of Dead Lake Township, is southerly of and adjoining to the existing resort. As the record indicates. Applicants already own and operate a resort adjacent to the land. Based on the proximity of Applicants' already operable resort, the amount of increased boat and RV traffic on the section of the lake. Applicants' variance request will not alter the character of the surrounding neighborhood. As a result, the BOA's decision to approve Applicants' request was reasonable, and not substantial. 9 As to the second factor, no government services will be impacted by the BOA's grant of the variance. Appellants do not argue this point. As to the third factor, not only is the variance reasonable, but also neighborhood support is cited in the record. At the Planning Commission Meeting held on May 14, 2014, Chuck Brasel voiced favor for the project, "stating that boat traffic is not currently a problem and should not be an issue with this proposal." AR 0016. Mr. Brasel also stated there will be no aesthetic issues as the resort is not visible from the lake. Id. Cheryl Harris, the former resort owner, indicated the clients who use the resort's amenities are good stewards of the land. Id. Further, the centralized docking system presents environmental benefits to the lake in that it assists in the prevention of the spreading of AIS. Id. Lastly, the approval promotes tourism. Id. The BOA agreed with Applicants and adjacent property owners the land is best suited for the type of development which was approved and through the acquisition of the 6.3 acre tract. Applicants will be better able to serve the general public. Additionally, because the total impervious surface for this entire tract of land is less than 19%, the impact, limited to the East Bay, is minimal. As to the fourth factor, the problem faced by Pro's Properties cannot be alleviated by any method other than a variance. The addition of twelve boats on a large (8,000 acre) lake is not substantial, and contrary to Appellants' argument the resort's footprint is not extensively large. Appellants' Memorandum, p. 12. As to the fifth factor, the Applicants did not create the issues facing the resort that require the variance. As Appellants point out, the same density restrictions apply 10 to all property owners located on "natural environment" lakes in Otter Tail County. Appellants' Memorandum, p. 23. Applicants sought the variance in order to expand their resort. They did not perform work prior to being granted the Conditional Use Permit ("CUP"). The CUP was subject to approval of variances and Applicants acted appropriately within this scope. More importantly, the presence of the bluff on the property necessitates the need for the variance. The BOA considered these factors and used the proper authority to grant the variance given the positive impact the expansion of the resort would have on the community and neighborhood. As to the sixth factor, the BOA made adequate findings in granting the variance and given its careful, particularized analysis of Pro's Properties proposal, the BOA did not favor or grant a single property owner greater rights. No other properties within the neighborhood have requested a variance for a resort of similar stature. Applicants are requesting to operate their property in a manner consistent with the environmental classification of the lake. Applicants installed a rain garden to reduce run off into the lake and are restoring the side hill to its natural state with natural plants. AR 0059-0061. Additionally, Applicants are working with the East Otter Tail Soil and Water Conservation District to reduce run off from their driveway. Id. Granting the variance serves the interests of justice. IV. THE BOA'S DECISION WAS PROPER AS IT DID NOT RELY SOLELY ON ECONOMIC CONSIDERATIONS IN GRANTING THE VARIANCE. Minnesota Statutes state, "economic considerations alone do not constitute practical difficulties." See Minn. Stat. § 394.27, subd. 7. The BOA analyzed many factors 11 in making its decision to grant Pro's Properties' variance request. Admittedly, some of the considerations have economic underpinnings, but even as such these economic considerations are not purely economic. Additionally, some considerations were not economic at all. At its September 11, 2014 meeting, the BOA confirmed the granting of the variance supports the role resorts in Otter Tail County play both environmentally and economically. AR 0064. As aforementioned, the proposed centralized docking system in fact presents environmental benefits in that it prevents the spread of AIS. AR 0016. The fact that Applicants hope to profit from the variance does not make the BOA's granting of the variance impermissible. The benefits to neighbors and the environment. in addition to economic benefits, make the BOA's approval lawful and not arbitrary and, therefore, in line with Minnesota Statutes. CONCLUSION The variance granted by the BOA is in the best interests of Otter Tail County, the Township of Dead Lake, and the community where it is located. The variance was lawfully granted and not based on impermissible density calculations. The variance was not granted for purely economic purposes. The variance granted by the BOA allowing for the requested expansion of Applicants' resort is supported by sufficient findings in the record, is not arbitrary or capricious, and is supported by the six factors found in In re Stadsvold as required by Minnesota law. Appellants request this Court overturn the variances granted by the BOA. This request is based on misfounded assertions the BOA did not act in accordance with Minnesota law. In fact, the BOA made appropriate findings of "practical difficulties" 12 allowing a variance be granted. Further, Appellants' expansion of a nonconformity argument was raised for the first time on appeal and thus may not be considered by this Court. For these reasons, we respectfully request the BOA's variance approval be upheld. Alternatively, if the Court finds the BOA's findings are inadequate, the BOA requests the Court remand this case to the BOA for the preparation of findings consistent with the BOA's grant of the variance. IVERSON REUVERS CONDON Dated: April 10,2015 By. ;, #0304037Jaso: Attorfiey for Otter Tail County 9321 Ensign Avenue South Bloomington, MN 55438 Phone: (952)548-7200 Fax: (952)548-7210 jasonk@irc-law.com 13 STATE OF MINNESOTA) )ss.AFFIDAVIT OF SERVICE COUNTY OF HENNEPIN) Becky Eitreim, City of Savage, County of Scott, State of Minnesota, being duly sworn, says that on April 10, 2015, she served the annexed Respondent Otter Tail County Board of Adjustment's Reply to Brief in Support of Appellants on the below listed attorneys for the parties in this action, by sending via e-mail transmission and by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing the same in the post office at Bloomington, Minnesota, directed to said attorneys, at their last known addresses: Matthew J. Loven RINKE NOONAN 1015 West St. Germain Street, #300 P.O. Box 1497 St. Cloud, MN 56302-1497 e-mail: MLoven@rinkenoonan.com A ■ Becky Eitr^m SUBSCRIBED AND SWORN TO before me on AnriJ 10, 2015. Npfary Public JASON J. KUBOUSHEK Notary Public-Minnesota My Commission Expires Jan 31,2020 Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Tuesday, March 31, 2015 8:05 AM Jeff Hentges (jhentges@mcit.org) David Hauser; Bill Kalar 14PE0164; Dead Lake Association v. Otter Tail County 3 31 15.pdf; Appellants' Memo of Law.pdf; County's Memo of Law.pdf From: Sent: To: Cc: Subject: Attachments: Good morning Mr. Hentges, Please see the attached report and memoranda. Feel free to contact me with any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk(fl)jrc-law.com received mar ■ , - www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 Iverson Reuvers Condon ATTORNEYS AT LAW (E March 31, 2015 Mark I. Condon Jon K. Iverson Paul D. Reuvers Jason J. Kuboushek Jason M. Hiveley Susan M. Tindal Stephanie a. Angolkar Andrea B. Smith Nathan C. Midolo Brian P. Taylor Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 RE: Dead Lake Association v. Otter Tail County Claim No: 14PE0164 Our File No. 200.1332 Dear Mr. Hentges: Since our last report, we have filed a Memorandum in Opposition to Appellant's appeal of the County Board of Adjustment's grant of a variance for 11 camping units in a second tier of a development and 11 boat slips. We have also received Appellant's initial brief which is attached for your file. In May 2014, the Otter Tail Board of Commissioners granted the Northern Lights Resort a CUP for 13 campsites and 12 boat shps conditioned upon receiving the necessary variances from the Board of Adjustment. Under the County's shoreline ordinance. Northern Lights Resort would be allowed 2 campsites in the first tier of the shoreline district, 1 campsite in the second tier of the shoreline district and 2 boat slips. The number of boat slips is directly tied to the number of campsites in the first tier. Northern Lights Resort originally appHed for a variance for 4 units in the first tier, 11 units in the second tier and 15 boat shps. After an initial pubHc hearing, the request was modified to 12 campsites in the second tier and 12 boat slips. Ultimately, the Board of Adjustment granted a variance for 11 campsites in the second tier and 11 boat slips. The Dead Lake Association challenged this variance grant based upon the fact it is contrary to the principles set forth in the County's shoreline zoning ordinance as well as the Board of Adjustment failed to make appropriate findings showing the practical difficulties necessary for granting a variance. On appeal in their brief. Dead Lake Association also raised a new argument indicating the variance grant would expand a non-conforming 9321 Ensign Avenue South | Bloomington, MN 55438 I 952.548,7200 I fax: 952.548.7210 I www.irc-law.com March 31, 2015 Page 2 use which is not allowed under the County's ordinance. In our brief, we opposed this argument indicating because it was not raised during the pubhc hearings or any of the submissions to the public hearings, it is not proper on appeal. We then attempted to argue the County went through the practical difficulties analysis in granting this variance. The record, however, shows there were not formal findings developed or articulated regarding the granting of this variance. It is clear the variance was granted based upon a desire by the Board of Adjustment members to allow resorts to expand and compete against resorts in other parts of the state. Plaintiff has legitimate arguments regarding the lack of findings regarding practical difficulties. As an alternative argument, we have asked the Court to remand this matter back to the Board of Adjustment so the Board of Adjustment could prepare adequate findings supporting its grant of the variance. If the Court does not grant our request to remand this matter back for the development of additional findings, it is quite likely the Court will overturn the Board of Adjustment's decision due to a lack of findings or evidence to support its decision. Our Memorandum in Opposition to Appellant's initial memorandum is due April 10. I will report back as soon as those Memoranda are exchanged. Please feel free to contact me with any questions. Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: iasonk@irc-law.com Enclosure David Hauser, County Attorney Bill Kalar, Planning & Zoning Administrator cc: From:Rinke Noonan 3206563500 03/26/2015 13:58 #854 P.001/018 Rinke Noonan attorneys at /aw 1015 W. SI. Germain St., Ste. 300. P.O. Box 1497 St. Cloud, Minnesota 56302-1497 Telephone 320-251-6700. Fax 320-656-3500 Date; March 26, 2015 FACSIMILE COVER PAGE FACSIMILE NO:COMPANY:TRANS.M1TTED TO: 952-548-7210Jason Kuboushek (320) 656-3500 (320)251-6700 Matthew J. Loven Attorney 17198-0003 Fax: Phone: TRANSMITTED BY: OUR FILE NO.: MESSAGE: Please sec the attached. The int'onnation contained in this facsimile message is attorney privileged and confidential information intended only for llie use of the individual or entity named above, if the reader of this mes.sage is not the intended recipient or the employee or agent responsible to deliver to the intended recipient, you arc hereby notified (hat any di.ssemination or copying of this comnninication is strictly prohibited. If you have received this communication in error, plea.se immediately notify as by telephone and return the original me.ssage to as at the above address via the U.S. Postal Service. Wc will immediately reimburse you for postage. pages, including this insiruoiion memorandum, areTOTAL PAGE.S TRANSMITTED; A total of transmitted. If all pages are not received, call Mary Jo Rowan at once at (320) 2.1! -6700. ^ Original Will Follow r~| Original Will Not Follow From:Rinke Noonan 3206563500 03/26/2015 13:58 #854 P.002/018 Rinke Noonan f/no/'wys tit Itiw DiifL-i Dial: 320-656-3S10 MlovontgiKinkcNwnan.coniMarch 26. 2015 Jason J. Kuboushek Iverson Reuvers Condon 9321 Ensign Avenae South Bloomington, iMN 55438 SENT VIA LI.S. MAIL AND FACSIMILE NO. 952-548-7210 Phyllis Freeman, Dead Lake Association, Inc. v. County of Otter Tail, Board of Adjustment Court File No. 56-CV-14-28.52 Our File No. 17198-0003 Re: Dear Mr, Kuboushek: Enclosed and served upon you by U.S. mail and facsimile, please End AppdlanEs Brief in Support of Appellant with regard to the above-re fere need matter. if you have any questions, please contact me. Sincerely, tMatl^i^v J. LoveTi" MJI/mjT Enclo-sure Dead Lake A.ssociaiion, Inc. (via email - vv/encl.)cc; l.ciitr Ja.KKi Kiibuiislu'l. (i,-3vin|, iSrith l.'n/’JOIM 10 AM ';.i,o:e j;.lO u:;. Ifeii'i!: i 01 S XV. l\0. ! -IX'/ V MM XX W '.AAA/w.fii-iKcooon.'Hn.roin From:Rinke Noonan 3206563500 03/26/2015 13:59 #854 P.003/018 Rinke Noonan i/ltome.yi iit htu' Direct Dial: 320-656-3510 MIovL'rtfrtjRinkcNoonan.cornMarch 26, 2015 Court Administrator Otter Tail County Courthouse 121 West Junius Avenue Fergus Falls, MN 56537 SENT VIA FACSIMILE ONLY TO 218-998-8438 1’byUi,s Freeman, Dead Lake Association, Inc, v. County of Ottcrtail, Board of Adjustment Court File No. 56-CV-14-2852 Our File No. 17198-0003 Re: Dear Court Administrator; Enclosed for filing in the above-referenced matter, please find Appellant’s Brief in Support, of Appellant, Affidavit of Service and a firm check (no. 75073) in the amount of $25.00 for the fax filing fee (by U.S. mail). If you have any questions, please contact me. Sincerely, .. Mafthew J. LoVerr MJL/mjr I __J Enclo.sures Dead Lake Association, Inc. (via email - w/encl.) ,Ja.son Kubou.shek (via U.S. mail & facsimile) cc: 'A'. Ill (i:'”:I] S;, I'O I S;. ivV': 'm«l/ y/u f2UU«‘rt?l l.vllci to Tail Coittny Caim WWW. n n KfVioon.'s n, c OUT From.'Rinke Noonan 3206563500 03/26/2015 13:59 #854 P.004/018 Case Type: Other Civil DISTRICT COURTSTATE or MINIMESO l'A SEVENTH .lUDlClAL DISTRICTCOUNTY OF O'lTER TAIL In the Matter of the Apjieal by Phyllis Freeman and the Dead Lake A.ssociation, Inc,, Court File No. 56-CV-14-2852 of the .September II, 2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro’s Properties, LLC d/b/a Northern f jghts Resort BRIEF IN SUPPORT OF APPELLANT INTRODUCTION This case is about the Board of Adjustment in Otter Tail County, Minnesota (the ‘T30A”) granting a request that is not permitted under Minnesota laws or Otter Tail County ordinances. Appellants Phyllis Freeman and the Dead Lake .Association, Inc. (the “Association”) are owners of real property on Dead Lake, a “natural environment” lake in Otter Tail County, Minnesota. The Association is dismayed that the BOA granted variances to Pro’s Properties, LLC, d/b/a Northern Lights Resort (“Pro’s Properties”) to expand a nonconforming resort on Dead l.ake in contradiction to its own ordinances and Minnesota shoreland rules. In rendering its decision the BOA wrongly permitted the expansion of a nonconl'onnity, relied on density stand,ard$ not in effect in Otter fail County, and failed to make legitimate findings of “practical difficulties”. For these reasons the Association asks this Court to overturn the variances granted by the BOA. .STATEMENT OF FACTS Pro’s Properties owns a resort and real property located in Dead Lake 'fownship, Otter Tail County, Minnesota (the “Existing Resort”), See AR 0010. The Existing Resort consists of 7.5 acres and Pro's Properties proposes to expand onto contiguous real property consisting of 6.3 acres (the |!71VX-0003/20«3927/I| From:Rinke Noonan 3206563500 03/26/2015 13:59 #854 P.005/018 “Expansion Property”). Id. The Existing Resort and Expansion Property are on Dead Lake in Otter Taii County, Minnesota, hi. Dead Lake is ciassilied as “natural environment”, defined as: Generally small, often shallow lakes with limited capacities for assimilating the impacts of development and recreational use. ITicy often have adjacent lands with substantial constraints for development such as high water tables, exposed bedrock, and unsuitable soils. These lakes, particularly in rural areas, usually do not have much existing development or recreational use, .See DNR Shoreland Management § 6120.3000, Subpart 1 and la (A). ShoreUind development on “natural environment” lakes is strictly regulated by the Otter Tail County Slioreland Management Ordinance (“OTC Ordinance”). See O'fC Oi'dinance, Section III, Subpart 3, On May 11,2014, Bill Kaler, Director of I,and and Resources Management for Otter Tail County (“Kaler”), prepared a staff report entitled the Northern Lights Resort Expansion Review (the “Staff Report”). See AR 0030 - 0038. Kaler concluded the proposed expansion required variances from density restrictions. See AR 0031. In accordance with the OTC Ordinance, Kaler calculated the number of dwelling unils permitted on the Existing Resort to be five and the number of dwelling units permitted on the Expansion Property to be three for a total of 8 dvvelling units. See AR 0038. Kaler’s findings illustrated that the Existing Resort is already nonconforming as it contains 19 dwelling units (1 house, 8 campsites, and 10 cabins) in an area zoned for a total oJ'5 dwelling units.' See AR 270, ' O'I'C Oi'din.incc, Seciioti if subparts 26 and 27; “Dwelling Site: A designated location for residential use by one or more persons using lemporaiy or movable shelter, including camping and recreational vehicle sites.” "Dwelling Unit: Any structure or portion ofa structure, or other shelter designed as short or long term living quarters for one or more persons, including, but not limited to, rental or timeshare accommodations such as cottage, house, motel, hotel and reson rooms, cabins, tents, RCUs and matuifactured homes." 2|1719!i-O(;0.V2O03927/l) FromflinkG Noonan 3206563500 03/26/2015 14:00 #854 P.006/018 lines 13-25, The proposal to expand the nonconformity with 15 additional dwelling units would result in 34 dwelling units in an area zoned for a total of eight, more than four times the number allowed under the OTC Ordinance, Id. On June 12, 2014, the BOA held its Hrst public hearing to consider Pro’s Properties Variance Application wherein Kaler presented his Staff Report showing the Existing Resort as nonconforming and the proposal to expand the nonconlbrmity to 34 dwelling units in an area zoned for a total of eight. See AR 0033. The BOA moved to table consideration of the Variance Application and instructed Kaler to “perform additional density and boat slip calculations using other calculation methods...” Sec AR 0064 and AR 0158. Specillcally, Kaler was instructed to use iitelevant commercial density standards under Minnesota Chapter 6120 of the DNR Shoreland and Floodplain Management Rute-s. See AR 0152; AR 0200, lines 5-15; AR 0201, lines 3-J4; see also VfN DNR Rules § 6120.3800, subpart 6 (A). On September 11, 2014, the BOA held its second public hearing on the Variance Application, See AR 0159 - 0220, Kaler presented his revised Staff Report incorporating the commercial standard not in effect in Otter Tail County. See. AR 0200, lines 11-13; AR 0212, lines 16-17. The BOA moved to grant the variances based on the impermissible commercial standard. See AR 0212, lines 14-16. During discussion the BOA failed to address expanding a nonconformity under Minne.soia law and the OTC Ordinance, nor did the BOA make the requisite findings of “practical difficulties” in accordance with Minnesota Statutes, the OTC Ordinance, or Minnesota case law. Instead, the BOA found the “practical difficulty” was supporting a “commercial enterprise within the County” and “commercial can be used as a practical difficulty now.’NSVe AR 0217, lines 14-18. 3|l7)98-0l)nty2l)0.3927/l| Fromflinke Noonan 3206563500 03/26/2015 14:00 #854 P.007/018 The BOA then voted 3-2 in Cavor of granting variances for 11 dwelling units and 11 boat slips on the Expansion Properly. See AR 0219, lines 2-15. The BOA Chainnan concluded, “the variance a.s approved does provide the owners of the resort with a reasonable commercial use of the property,” and “the variance as approved supports the commercial resort industry and recognizes the important role resorts have both environmentally and economically”. See AR 0064.^ STANDARD OF REVIEW Interpretation of an existing zoning ordinance is a question of law to be reviewed de novo. Frunk's Nursery Sales. Inc. v, Ciiy of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). Minnesota law provides a landowner the right to appeal a decision made by a board of adjustment to the district court in the county in which the land is located. Minn. Stat. § 394.27, subd. 9 (2014). On appeal, the district court will independently review' the board's decision. Town of Grant v. Wa.shmgton County, 319 N.W,2d 713, 717 (Minn.1982); see also Memlota Golf LLP v. City of Mendolu Heights, 708 N.W.2d 162, 180 (Minn.2006) (noting that review involves independent examination ol'record and conclusions). I'he di.slrict court will overturn the board of adjustment’s decision w'hen the board exceeds its jurisdiction; proceeds on a mistake of law; makes a decision that is not reasonably supported by the evidence; or acts arbitrarily, oppressively, or unreasonably. In re Stadsvold, 754 N,W.2d 323, 332 (Minn. 2008). * * It should be noted that current BOA member, Mike HaiTi.s, recently sold the Northern Lights Resort to Pro’s Properties. While Mr. Harris ultimately recused himself from voting on the variance requests, Mr. Haifis proved himselfa biased, and often confrontational, advocate of Pro’s Properties in the BOA meetings held on June 12 and September 11, 2014.5ee AR 0166, lines 19-25; AR 0167, lines 1-25; AR 0168, lines 1-9; and AR 0253-0255. 4117198-0003/2003927/1] From:Rinke Noonan 3206563500 03/26/2015 14:01 #854 P.008/018 ARGUMENT 1. The BOA deliberately, arbitrarily, and capriciously used improper zoning standards to reach a preferred result. The BOA consciously disregarded its own density calculation standards under the OTC Ordinance in favor of a commercial standard under the DNR Shoreland Management Rules pertaining to planned unit developments (“Commercial Standard’*)- AR 0258, lines 7-22; See AR 0260 - AR 0261; see also DNR Rules § 6120.3800, .subpart 6. Use of the Commercial Standard by the BOA is impennissible for two reasons; first, The Commercial Standard is only permitted if the local government allows planned unit developments and has identified “planned unit development districts” in their official controls and on a zoning map. See DNR Rules § 6120.3800, subpart 2. Second, Otter Tail County explicitly rejected adoption of the Commercial Standard in 1992. See AR 0267, lines 18-21. All of Otter Tail County is classified as “High Density Residential District,” as modified in the OTC Ordinance. See OTC Ordinance, Section III, .subpart 1; see also DNR Rules § 6120.3200, subpari. 3 (C). There are no “planned unit development districts” identified in either the Od'C Ordinance or on the Otter Tail County zoning map. Also, the O TC Ordinance contains no provision for “planned unit developments” and therefore, there is no basis to use the Commereiat Standards in Otter Tail County by the BOA. Additionally, a key modification to the OTC Ordinance is the more restrictive standard for calculating permitted shoreland density (“OTC Standard”). See OTC Ordinance, Section III, subpari 3. Otter Tail County refused to adopt the Commercial Standard in favor of its more restrictive OTC Standard. See OTC Ordinance, Section 111, subpari 3. As Kalcr explained to the BOA at the June 12, 2014, meeting, “Otter Tail County chose back in 1992, to forgo the 5|171VS-()OO3/:O0.V127d| FromiRinke Noonan 3206563500 03/26/2015 14:01 #854 P.009/018 commercial .standard. Ii was looked at as Just allowing too many units." See AR 0267, lines 18-21 (emphasis added); see also DNR Slioreland Management § 6120.2800, subpan 1. (“Nothing in these standards and criteria shall be construed as prohibiting or discouraging a local government from adopting and enforcing controls that are more restrictive." (emphasis added)). Regardless, the BOA instructed Kalcr to apply the Commercial Standard (o Pro’s Properties variance request. See AR 0269, lines 12-15; AR 0270, lines 13-25. Approval of the variances was granted on the motion, “I would make a motion that we approve the requested based on the state standards for commercial.” See AR 0212, lines 14-16. The use of the Commercial Standard was totally improper and failed to meet the legal standards in both the DNR Rules and the OTC Ordinance. The record shows the BOA used the Commercial Standard for the purpose of reaching a preferred result. Id. The Court must overturn its decision as arbitrary and capricious. As noted in In re Siad.svold, a decision arising from the application of an improper legal standard would be arbitrary and capricious and therefore must be overturned. StodsvoldlSA N.W.2d 323 at 332. 2. Minnesota law and the OTC Ordinance expressly forbid the expansion of nonconformities. The 1/xisting Resort is already nonconforming pursuant to Minnesota law and the OTC Ordinance. Expanding a nonconformity Is strictly prohibited by the Minnesota legislature and Section IV of the OTC Ordinance. ^Minti. Stai. S 394.22. subd. 2. “’Nonconformity' 'any legal use, structure or parcel of land already in existence, recorded, or authorized before adoption of office controls or amendments thereto that would not have been permitted to become established under the terms of the office controls as now written, if the official controls had been in effect prior to the date it was established, recorded or authorized.’" See also OTC Ordinance, Section 11, subparl 51; “Non-Conformity: Any legal use, structure or parcel of land already in existence, recorded, or authorized before the adoption of official controls or amendments thereto that 6(!7iy».0()()3/2003927/l| From:Rinke Noonan 3206563500 03/26/2015 14:02 #854 P.010/018 The prohibition on expansion is well established in Minnesota and Otter Tail County. The OTC Ordinance requires that a nonconformity “may not be expanded or improved” See Ol'C Ordinance Section IV, subpad 12, (C) (empha.sis added). The Minncsola legi.slature dictates under Minn. Stat. § 394.36, subd. 4, that “nonconforming seasonal residential real estate occupied for recreational purposes may be continued . . . but not including expansion” (emphasis added). Prohibitions on expajision arc ol’ten buttressed by the underlying purj)ose and intent of the zoning ordinance.s regulating nonconformities, which in the case of the O TC Ordinance slates: To regulate the use and orderly development of shorelands in Otter Tail County, to prevent and eliminate pollution of public waters and to maititain historic values of significant historic sites in the unincorporated areas of Otter Tail County, and to preserve and enhance our natural resources. See OTC Ordinance, Section 1, subpan 2. Nonconformities may continue under vvhat is commonly referred to as “grandfather rights,” County of Lake v. Courtney HI, 451 N.W,2d 338, 339 (Minn. 1990). However, such rights are strictly regulated and the gradual elimination of noneonformities is a common objective among zoning authorities. Id. 'fhe prohibition on expanding nonconformities is a pervasive component of zoning ordinances. Northgaie Homes Inc. v, City of Dayton, 126 T.3d 1095, 1100 (8*'' Cir. 1997) (“ITJo further the public policy interests underlying eompreliensive zoning plans, the law disfavors the expansion or enlargement of pre-existing nonconfonning uses and instead favors the gradual elimination of such uses through obsolescence, exhaustion, or destruction.”); see also 8A MoQuillin Mun. Corp. § 25:220 (3d ed.) (“in general, a nonconforming use is limited to the area it covers at the time of enactment of the zoning ordinance or restriction and cannot later be would not have been pei miUed to become established under the terms of the oftlcia! controls as now w'riUen, if the oflleial controls had been in clTe-ei prior to the date it was established, recorded or authorized.’' 7ll7l9S-OI)03/.t003927/l| FromiRinkG Noonan 3206563500 03/26/2015 14:02 #854 P.011/018 expanded to the boundarie.s of the tract or beyond the original tract.”); see also Edward M. Ziegler, Jr., 4 RathkopPs The l.avv of Zoning and Planning § 73:18 at 73-93 (200.‘5 ed.) (“[IJcreases in the volume or size of the nonconforming use are generally effected through an extension or enlargement of a nonconforming use or an increase in the area of land or buildings used for its operation.”). As discussed, the Existing Resort already grossly exceeds density limits on “natural environment” lakes in Otter Tail County. See AR 0270, line.s 13-25; see also OTC Ordinance Section 3. Pursuant to the OTC Ordinance the Existing Resort is zoned for 5 dwelling units. however it consists of a total of 19 dwelling units (1 house, 8 campsites, and 10 cabins). See AR 0270, lines 8-12, The OTC Ordinance expressly forbids expansion of a nonconformity. See Section IV, subpart 12 (C). Furthermore, permitting such expansion is contrary to the gericrai purpose and intent of the OTC Ordinance which is to regulate orderly development of shorelands in Otter Tail County and to preserve and enhance the County’s natural resources. See OTC Ordinance, Section I, subpart 2. This purpose i.s not served by pcnnitling the expansion of nonconforming shoreland property, nor are the County’s natural resources preserved or enhanced by intensification of shoreland development on a “natural environment” lake sensitive to overdevelopment and use. in this case, the BOA should have found the Existing Resort as nonconforming and, therefore, cannot be permitted to expand. As w'as discussed in the record, Pro’,s Properties purchased a nonconforming property, “[tjhey bought the resort... what they bought is what they got,” and must accept the restrictions inherent with owning nonconforming property. See AR 0273, lines 14-17, This Court must overturn the BOA’s decision to permit expansion of a nonconformity in violation of Minne.soia law, the OTC Ordinance, and the core principles ofplanning and zoning. 8|171i>8-000.V2003927/l| From:Rinke Noonan 3206563500 03/26/2015 14:03 #854 P.012/018 3. Even if expansion of a nonconformity were acceptabie, the BO/\ failed to make finding.^ regarding “practical difficulties” a.s required by Minnesota Statutes, the OTC Ordinance, and In re Stadsvold, When deciding variance requests, the zoning authority must “articulate the reasons for its ultimate decision, with specillc reference to relevant provisions of its zoning ordinance.” h re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) (quoting Earthburners, Inc. Cnty. of Carlton, 513 N.W.2d 460, 463 (Minn, 1994)). “W'hen the 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 at 332. A decision based on insufficient evidence or arising from the application of an improper legal standard is arbitrary and capricious. Id. Thus, when the zoning authority fails to make findings sufficient to analyze the basis of its decision, the reviewing court must overturn its decision. Id. And if it appears that the zoning authority applied the incouect legal standard, it is also appropriate to overturn the decision. Id.; see also Earihburner.s, 513 N.W,2d at 463. At the June 12, 2014, meeting the BOA was explicitly put on notice of its obligation to make findings of “practical difficulties” in accordance with Minnesota statutes and case law; This Board is not the Planning Commission, so we don’t have that luxury here. What we do have is court rulings and different things and some new legislative language which tasks the Board of Adjustment to review an application and determine whether or not there is a practical difficulty, is what you need to uncover to see in order to grant the variance and the Board members are all familiar with that. See AR 0246, lines 14-22. Yet, the record is lacking with legitimate findings of “practical difficulties” that would pemiit the BOA to justifiably grant variances to Pro’s Properties. See AR 0! 59-0216, 9II7I9S-0003/2003927/11 From.'Rinke Noonan 3206563500 03/26/2015 14:03 #854 P.013/018 a. The BOA failed to make findings in accordance with Minn. Stat. §§ 394.22 and 394.27. The Minnesota legislature requires zoning authorities to establish ‘‘practical difflcultie.s” before granting a variance. See Minn. Stat, § 394.27, subd. 7. The legislature defines "practical difficulties” as; The property owner proposes to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Id Thi.s authority is limited to “exceptional circum.sianccs.” See Minn. Stat. § 394.22, .subd. 10. And dictates that “variances shall only be permitted when they are in harmony with the general purpose and intent of the official control.” See Minn. Stat. § 394,27, subd. 7. In thi,s case, the BOA never discussed Minnesota Statutes §§ 394.22 tmd 394,27. See AR 159 - 276. It found nothing “unique to the properly,” nor did it identify “exceptional circumstances" faced by Pro’s Properties. Id. Instead, the focus was on maximizing profits and commercial use of the Existing Resort and Expansion Property, considerations the legislature explicitly stales do not constitute “practical difficulties,” See Minn, Stat. § 394.27, subd. 7. Furthermore, it made no findings that the variances were “in harmony with the general pui’ixise and intent of the official control,” which as discussed arc to regulate orderly development of shoreland and preserve the County’s natural resources. See OTC Ordinance, Section I, subpart 2. Had the BOA considered the above, the variances would have been denied as the analysis weighs heavily in favor of denial. 10|I7I98-0003/20(B‘>27/I1 From:Rinke Noonan 3206563500 03/26/2015 14:04 #854 P.014/018 b. The BOA ignored the “practical dil'ficuitics” framework under its own OTC Ordinance. The OTC Ordinance requires a llnding of “practical difficulties” prior to granting a variance. See OfC' Ordinance, Section V, subpari 6. To assist the BOA in determining whether “practical difficulties" exist the OTC Ordinance outlines considerations, such as; I. Whether the variance will secure for the applicant a right or rights that are enjoyed by the other owners in the same area; and 2. Whether granting the variance will be contrary to the public interest or damaging to the rights of other persons or to the property values in the neighborhood. See OTC Ordinance, Section V, subpart 6. The BOA never addressed the OTC Ordinance criteria. Instead, the BOA focused entirely on economic and commercial considerations, See AR 159 - 276; .vee abo OTC Ordinance, Section V, subpari 6, (C) (“Economic considerations alone do not constitute practical difficulties.”). Reviewing the OTC Ordinance criteria compels the conclu.sion that the variances were improper. ■flte variances do not secure for Pro’s Properties any rights enjoyed by surrounding property owners. To the contrary, the variances grant Pro’s Properties rights superior to surrounding property owners by permitting intensffied development grossly beyond what similarly situated pj'opeity owners are allow'ed. Further, the variances would bring all the problems common to intensified use; such a.s noise, heavy boat and vehicle traffic, degradation of vegetation buffers, and threatened shoreland integrity. c. The BOA failed to consider the six Stadsvold factors. The Minnesota Supreme Court addressed “practical difficulties” in In re SlaJsvold and established six factors which county zoning authorities must consider when analyzing a variance request. In re Stadsvold at 332, The six factors are as follows: How substantial the variation is in relation to the requirement; The effect the variance would have on government services; 1. 2. 11 FromiRinke Noonan 3206563500 03/26/2015 14:04 #854 P.015/018 Whether the variance will eiTeci a substantial change in the character of the neighboiitood or will be a substantial detriment to neighboring properties; Whether the practical difficulty can be alleviated by a feasible method other than a variance; How the practical difficulty occurred, including whether the landowner created the need for the variance; and Whether, in light of all of the above factors, allowing the variance will serve the interests of justice. 3, 4. 5. 6. The BOA never addressed the Stadsvoki factors establi.shed by the Minnesota Supreme Court.'' See AR 1,59-276. And a consideration oiSiadsyoidclearly shows the variances are improper. Regarding the first factor, the BOA granted a substantial variation in relation to the requirements under the OTC Ordinance. Beyond the fact that the Exi.sling Resort is already nonconforming, the variation granted by the BOA is massive; more than three times (3x) the number of dwelling units and five limes (5x) the number of dock slips allowed under the OTC Ordinance, See AR 0030-0038, Regarding the third factor, the variances w'ould effect a .substantial change in the character of the neighborhood and would substantially affect the neighboring properties. Dead Lake is a "natural environment” lake and is not capable of intense use and development. The variances would generate increased foreign boat traffic and dense u.se at the expense of the health and viability of Dead Lake. Regarding the fourth factor, the problem faced by Pro’s Properties can be alleviated by a feasible method other than a variance. There is no faced by Pro’s Properties that is uniquely its own. Property owners on “natural environment” lakes throughout Oiler Tail County are bound by identical density restrictions. Pro’s Properties already maintains a nonconforming ■* This is surprising considering Stiuhvalds,\cms from the Otter Tail County BOA. The Otter Tail County BOA should be aware of the SuiJsvolil t'a<:lors considering it so recently was at the center of this case. 12|17l98-000.V2OO,'?927/l! From.'Rinke Noonan 3206563500 03/26/2015 14:05 #854 P.016/018 footprint that is extensively larger than what similarly situated property owners will ever be allowed, 'niis is not a ’’problem” to be solved by the BOA with varitmees. Regarding the fifth factor, the difficulties are not unique to the Existing Resort or the Expansion Property. The same density restrictions apply to all property owners on “natural environment” !ake.s in Otter Tail County. Regarding the sixth and final factor, in light of all of the above factors, allowing the variances vvill not serve the interests of justice. Permitting a single property ow'ner greater rights beyond what other similarly situated property ow'ners are allowed is unjust. Had the BOA considered the six Sfadsvold factors, the variances would have been denied. 4, Economic con.sidcrntions alone do not constitute “practical difficulties.” The BOA based its decision to grant Pro’s Properties variances on the misguided belief that supporting private business constitutes a “practical difficulty.” See AR 0064. Minnesota Statutes explicitly slate that “economic considerations alone do not constitute practical difficulties.” See Minn. Stat. § 394.27, subd. 7. The OTC Ordinance contains this same language in Section V, subpart 6 (C). Finally, the Minnesota Supreme Court reiterates this point in Stadsvold. Siadxvold at 332. The record is rampant with discussions about supporting the resort industry in Otter Tail County and making the Existing Resort economically viable for Pro’s Properties. See AR 0217, lines 9-18 (statement that “practical difficulty” was supporting a “commercial enterprise within the County” and “commercial can be used as a practical difficulty now.”); see also AR 0268, lines 11-2.*), AR 0269, lines 1-2 (“If we don’t give it, then .supposedly we hurt business and tourism in the County. And if we do give it, we’re setting a precedent for any other resort. And 1, for me, I’m 13[17198-0003/2003927/1] From:Rinke Noonan 3206563500 03/26/2015 14:05 #854 P.017/018 a little against setting the precedent for other resorts. Although I do believe in business.”); see also AR 0271, line.s 23-25; AR 0272, line 1 (“It sounds to me this is all about money. This is about buying six acres and generating as much revenue off that six acres as possible.”); see also AR 0273, lines 12-13 (statement that Pro^s Properties are “are trying to make a living” and insinuating the BOA should assist.). Upon approval, the BOA Chainnan concluded, “The variance as approved does provide the owners ol'the resort with a reasonable commercial use of the property,” and “the variance as approved supports the commercial resort indu.stry and recognizes the important role resorts have both environmentally and economically.” See AR 0064. CONCTTJSION In this case, the BOA used impermissible density calculations, permitted the expansion of a nonconformity, and iailed to make tlndings of “practical difllculties” under Minnesota Statutes, the OTC Ordinance, and Sladsvold, while instead focusing on irrelevant commercial and economic considerations. For these reasons we respectfully request this Court to overturn the variances granted to Pro’s Properties. RINKE NOONANDated: March 26, 2015 Malthc"^J, Loven {#03'9^r?74) Suite 300 US Bank )^bzaj^udding 1015 W. St. Germain St. P.O. Box 1497 St. Cloud, MN 56302-1497 (320)251-6700 (.320) 656-3500 fax ATfORNEYS FOR APPELLANT 14|l7l98-0()(1.3/200.-?V27/l| From:Rinke Noonan 3206563500 03/26/2015 14:06 #854 P.018/018 st'ah: of m inn esc i'a )AFMDAVIT OF SERVICE BY MAIL AND FACSIMILE) ssCOUNTY OF STEARNS ) 1'hc below signed, being duly sworn, stales that on the ■‘Hay ofMarch, 2015, I served the Brief in Support of Appellant upon Jason Kuboushek, the attorney for Otter Tail County, the Respondent in this action, by mailing to him a copy thereof, enclosed in an envelope, postage prepaid, and by depositing the same in the post office at St. Cloud, Minnesota, directed to said attorney at Iverson Reavers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438, and liaxing to 952-548-7210, the last known address and fax number of said attorney. 1 ‘ U'.VAA/' \ JSubscribed and sworn to before me ofMarch. 2015. BONNIE L MAHONEY NOTARy PUBUC • MINNESOTA MyContmtesioaEwto Jan. 31,2020 \, . fj ^Jx/uy lotary Publie Ii7iy8.()0().v2(xv',6yi)/ii V Iverson Reuvers Condon ATTORNEYS AT LAW Mark J. Condon Ion K. Iverson Paul D. Reuvers /ASON J. Kuboushek Jason M. Hiveley Susan M.Tindal Stephanie A. Angolkar Andrea B. Smith Nathan C. Midolo Brian P. Taylor March 27,2015 VIA FACSIMILE Court Admirustrator OTTER TAIL COUNTY COURTHOUSE 121 West Junius Avenue Fergus Falls, MN 56537 % % RE: Dead Lake Association v. Otter Tail County Trial Court File No. 56-cv-14-2852 Our File No. 200.1332 Dear Court Administrator: Enclosed for filing in the captioned matter please find Respondent's Memorandum of Law in Support of Summary Judgment and in Response to Appellants' Memoranda of Law in Support of Summary Judgment and affidavit of service. Also enclosed find our motion/fax fee in the amount of $127.00. Pursuant to Rule 5.05 of the Minnesota Rules of Civil Procedure, I will maintain the originals of these documents in my files, and these originals will be made available to the Court or any party to the action upon request. Sincerely, IVERSON REUVERS CONDON I . Kuboushek Direct: (952)548-7206 E-mail: jasonk@irc-law.com Enclosures Matthew J. Loven (via facsimile and U.S. Mail)cc: 9321 Ensign Avenue South 1 Bloomington, MN 55438 I 952.548.7200 I fax: 952.548.7210 I www.irc-law.com STATE OF MINNESOTA IN DISTRICT COURT COUNTY OF OTTER TAIL SEVENTH JUDICIAL DISTRICT In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., of the September 11,2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro's Properties, LLC d/b/a Northern Lights Resort Court File No. 56-cv-l4-2852 RESPONDENT'S MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT AND IN RESPONSE TO APPELLANTS' MEMORANDA OF LAW IN SUPPORT OF SUMMARY JUDGMENT INTRODUCTION This matter involves an administrative appeal of the grant of a variance by the Otter Tail County Board of Adjustment ("BOA") to Pro's Properties, LLC, d/b/a Northern Lights Resort ("Northern Lights") for eleven additional mooring slips and eleven dwelling sites. The variance allowed Northern Lights to have one mooring slip for each dwelling unit on its 6.3 acre parcel. The BOA's decision should be affirmed because it was reasonable, not arbitrary and capricious, and based upon substantial evidence in the record. STATEMENT OF DOCUMENTS Administrative Record, submitted to the Court on February 17,2015. STATEMENT OF FACTS Pro's Properties LLC d/b/a Northern Lights Resort, owned by Cheryl and Vince Prososki, operates a resort on Dead Lake in Otter Tail County. Their current location is adjacent to a 6.3 acre tract upon which they are seeking to construct a new development. Applicants' initial request included a Phase Development, including placement of fifteen campsites with fifteen boat slips within the tract. AR 0023. The proposed campsites were to be implemented in three phases over the course of four years. Id. Prior to the expanded proposal. Applicants owned ten cabins, eight RV sites. and one home. Id. Their request, therefore, is for a total of 23 RV sites, ten cabins, and one home. Id. On May 20, 2014, a Conditional Use Permit was granted to Applicants allowing construction of thirteen campsites and twelve boat slips. AR 0001. This CUP was conditioned upon necessary variances. These variances include a bluff setback. watercraft docking, and allowable density calculations. AR 0069. Additionally, Dead Lake Township supported the project. AR 0062. Bill Kalar, the Otter Tail County Land and Resource Director, performed several expansion reviews to address questions and concerns of neighbors and the Dead Lake Association. AR 0071-0074. He addressed the site densities and boat slip calculations. Moreover, he provided the BOA with a detailed worksheet as to how calculations were made. Id. He also provided details regarding the number of sites and boat slips allowed under the ordinance without a variance and the number of sites and boat slips requested. Id. These calculations indicate the ordinance allows two units in the first tier 2 and one unit in the second tier as well as an equail number of boat slips as to units in the first tier without a variance. The June 12,2014 expansion review reports Applicants' request for a variance includes four units in the first tier, eleven units in the second tier. and fifteen boat slips. Id. On June 12,2014, the BOA held its first meeting on the Northern Lights Resort's variance request. AR 0222-0277. At the hearing, members of the public spoke for and against the variance request. Adjacent neighbors were in favor of the project because they believed it "will make good use of the property." AR 0239. The Applicants also clarified the proposed boat slip would be tucked into a bay and the whole project's impervious surface would only amount to 19 percent of the land. AR 0245. After public testimony. County Staff summarized the project and the County's ordinances. AR 0246-0252. The BOA then compared the County standards with the State standards. AR 0252-0276. The BOA also discussed the effect the bluff had on the property and the property density calculations. AR 0262. One member indicated the variance hardship was "because the land does not go straight back and allow a lot of area in the back for their expansion." AR 0273. Following the BOA discussion, the matter was tabled until the next meeting. On August 20,2014, a revised request was received and a Notice of Hearing for Variance issued. AR 0091-0094. This request reduced the number of requested units and boat slips to twelve each. Id. It also reduced the number of campsites affected by the bluff setback variance. 3 On September 11,2014, the BOA held its next hearing on Northern Lights Resorts' variance request. AR Tab 37. After public comment and a staff presentation on what would be allowed under State Commercial Planned Unit Development standards without a variance, the BOA granted a variance approving eleven campsites and eleven accompanying boat slips. AR 0216. In approving the variance request, the BOA noted the drainage from the proposed campsite areas does not go directly into the lake. Rather, it flows away from the lake. AR 0218. Therefore, the variance would not impact the lake. On October 3,2014, the Dead Lake Association commenced this action in the Seventh District Court of Appeals challenging the BOA's grant of the variance application to Pro's Properties, LLC d/b/ a Northern Lights Resort. See Notice of Appeal. STANDARD OF REVIEW Regarding variance requests. County boards of adjustment have "the exclusive power to order the issuance of variances from the requirements of any official control." Minn. Stat. § 394.27, subd. 7 (2013). Decisions of boards of adjustment are final, but can be appealed to the district court. Minn. Stat. § 394.27, subd. 9. A board of adjustment "has broad discretion to grant or deny variances." Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85,90 (Minn. App. 2000), review denied (Minn. Nov. 15,2000). "In reviewing a decision of a county zoning authority, a court must 'determine [whether] the zoning authority 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 determination.'" Nesvig v. Crow Wing 4 County, 2011 WL 3557871, *2 (Minn. App. Aug. 15,2011), review denied (Oct. 18,2011) (quoting In re Stadsvold, 754 N.W.2d 323,332 (Minn. 2008). "If there is evidence in the record supporting the decision, a court may not substitute its judgment for that of the zoning authority, even if it would have reached a different conclusion." Id. (citing VanLandschoot v. City ofMendota Heights, 336 N.W.2d 503,509 (Minn. 1983)). A local board of adjustment "has broad discretion to grant or deny variances. and we review the exercise of that discretion to determine whether it was reasonable." Kismet Investors, Inc. v. Cnty. of Benton, 617 N.W.2d 85,90 (Mirm. App. 2000), review denied (Minn. Nov. 15,2000). To do this, we must "determine whether the zoning authority 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 determination." Mutsch v. County of Hubbard, 2012 WL 1470152 at *3 (Apr. 30,2012) (citing In re Stadsvold, 754 N.W.2d 323,332 (Minn. 2008)). ARGUMENT I. APPELLANTS FAILED TO RAISE THE ISSUE REGARDING NONCONFORMITIES AT THE PUBLIC HEARINGS AND CANNOT RAISE IT FOR THE FIRST TIME ON APPEAL. For the first time on appeal, the Appellants argue the BOA erred in granting the variance because the variance allows an expansion of a nonconformity. Appellants' Memorandum of Law, p. 6. First of all, the BOA denies this accusation is true. More importantly, however, this argument must not be considered because it was not raised during the public hearings or in submissions to the BOA. 5 It is fundamental a party challenging a land use decision must raise the issue directly to the Board or the issue is waived. See Big Lake Ass'n v. St. Louis County Planning Comm'n, 761 N.W.Zd 487,492 (Minn. 2009) (failure to raise issue before county board meant it could not be raised on certiorari appeal); Graham v. Itasca County Planning Comm'n, 601 N.W.2d 461,467 (Minn. App. 1999) (argument regarding variance waived because it was not raised before appeal). The record of the hearing and the administrative record show the Appellants did not raise the nonconforming use issue at the hearing or in any of their submissions. Because they failed to raise the issue below. they cannot claim it now. II.THE OTTER TAIL COUNTY BOARD OF ADJUSTMENT PROPERLY EXERCISED ITS DISCRETIONARY AUTHORITY IN GRANTING PRO'S PROPERTIES LLC, d/h/a NOTHERN LIGHTS RESORTS' APPLICATION FOR A VARIANCE. A. No Practical Difficulties Minnesota Statutes Chapter 394 gives counties the power to grant variances when a zoning ordinance may cause "practical difficulties." See In re Stadsvold, 754 N.W.2d at 329. Minnesota Statutes Section 394.27, Subdivision 7 expressly states: The board of adjustment shall have the exclusive power to order the issuance of variances from the requirements of any official control including restrictions placed on nonconformities. 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. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the 6 essential character of the locality. Economic considerations alone do not constitute practical difficulties. Minn. Stat. § 394.27, subd. 7 (2014). In variance cases, reasonableness is measured by the standards set out in the local ordinance. Roach v. County of Becker, A12- 0132,2012 WL 6097133, *5 (Minn. App. Dec. 10,2012) (citing VanLandschoot, 336 N.W.2d at 508 n. 6). An applicant for a variance has a heavy burden to show the approval is appropriate, since a variance allows property to be used in a manner forbidden by zoning ordinance. Kismet Investors, Inc., 617 N.W.2d at 90. Moreover, land use decisions are entitled to great deference and wUl be reversed by a reviewing court only when the decision has no rational basis. See Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203,207 (Minn. 1993). In addition, the Minnesota Supreme Court has articulated the following factors for consideration when applying the "practical difficulties" standard: (1) How substantial the variation is in relation to the requirement; (2) The effect the variance would have on government services; (3) Whether the variance will affect a substantial change in the character of the neighborhood or be a substantial detriment to neighboring properties; (4) Whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) How the practical difficulty occurred. including whether the landowner created the need for a variance; and (6) Whether in light of all the stated factors, allowing the variance will serve the interest of justice. See In re Stadsvold, 754 N.W.2d at 331. 7 1. The variance was not arbitrary or capricious. After reviewing the record prepared by county staff, listening to the statements presented at the hearing, examining the applicable ordinance, and reviewing letters from supportive and concerned neighbors, the Otter Tail County BOA determined Pro's Properties, LLC d/b/a Northern Lights Resort's ("Applicant") requested variance would be in line with Otter Tail County's goals. Otter Tail County's Shoreland Management Ordinance ("Ordinance") stated "[t]he number of spaces provided for continuous beaching, mooring or docking or watercraft must not exceed one for each allowable dwelling unit or site in the first tier." Otter Tail County Shoreland Management Ordinance at p. 23. It logically follows that because the BOA did not grant any units in the first tier, but did grant eleven units in the second tier, each of the second tier units should be allowed its own boat slip. Moreover, the record indicates Applicants' variance request is compatible with the surrounding properties and is requested as a result of Applicants' desire to use their property in a manner consistent with the purpose of promoting economic growth and tourism to enhance the productive use of the land. Otter Tail County has been experiencing a loss of resorts throughout the County. AR 0140-0143. The Applicants' request for a variance provides opportunities for economic development and the proposed project is compatible with the usage of the surrounding area. Id. The BOA made its decision based upon substantial evidence in the record. Additionally, clients at the Resort have historically been good stewards of the land and the lake (not all are fishermen). Neighbors have spoken to the legitimacy of the project, stating boat traffic is 8 not a problem currently and should not be a problem with this proposal and the resort is not visible from the lake. Id. Furthermore, Dead Lake is a large lake with public access points allowing the lake to be accessible to anyone who may wish to place a boat on the lake at any time. Dead Lake is a large lake (almost 8,000 acres) and the addition of twelve boats that may sporadically be on the lake will have a minimal impact. Even if the concern with increased boat traffic was legitimate, the Dead Lake Association has no right to attempt to control the number of boats on the public lake by limiting the Applicants' presence. For these reasons the BOA's granting of the variance request was reasonable and not arbitrary or capricious. 2. The variance decision was not an abuse of discretion and was lawful and proper. The project would not only promote tourism, but would also assist in preventing the spread of AIS, a benefit to businesses and Otter Tail County. AR 0154. Also, Applicants' request includes the use of existing roads and trails and will not require construction of new avenues to reach the resort. This will be an environmental as well as economic advantage. AR 0114. In addition to environmental and economic benefits. the expansion of the Resort presents societal benefits. The resort offers an affordable means for families to avail themselves of natural resources whose preservation is supported by their tax dollars. AR 0103-0112. The high cost of lakeshore prices puts most Minnesotans out of the lake cabin market, thus prohibiting them from accessing our state's natural resources. The best way to restore public access is through resorts. 9 "From a public policy standpoint, the closing of resorts translates directly to the loss of lake access for thousands of hard working Minnesotans." Id. These benefits satisfy the legal requirement under Minnesota Statutes Section 394.27, Subdivision 7 stating that economic considerations alone do not constitute "practical difficulties." The purpose of the BOA is to adjust from the controlling Ordinance when necessity requires. Here, adjustment is required to allow the Applicants to expand their business for the benefit of the environment and to prevent Otter Tail County from losing the economic benefit of a valuable resort. The area has lost far too many resorts in the past 20 years and losing another would be a detriment. 3. The variance request is not a result of Applicants' actions. Applicants sought the variance in order to expand their resort. They did not perform work prior to being granted the Conditional Use Permit ("CUP"). The CUP was subject to approval of variances and Applicants acted appropriately within this scope. More importantly, the presence of the bluff on the property necessitates the need for the variance. 4. Granting the ordinance will not provide special privilege to Applicants. No other properties within the neighborhood have requested a variance for a resort of similar stature. Applicants are requesting to operate their property in a manner consistent with the environmental classification of the lake. Applicants installed a rain garden to reduce run off into the lake and are restoring the side hill to its natural state with natural plants. AR 0059-0061. Additionally, Applicants are working with the East 10 Otter Tail Soil and Water Conservation District to reduce run off from their driveway. Id. 5. The variance will not have a negative impact on adjacent landowners. The BOA agreed with Applicants and adjacent property owners the land is best suited for the type of development which was approved and through the acquisition of the 6.3 acre tract. Applicants will be better able to serve the general public. Additionally, because the total impervious surface for this entire tract of land is less than 19%, the impact, limited to the East Bay, is minimal. 6. A variance would not alter the character of the property in the zoning district. The 6.3 acre tract, part of Government Lot 9, Section 25 of Dead Lake Township, is southerly of and adjoining to the existing resort. As the record indicates. Applicants already own and operate a resort adjacent to the land. Based on the proximity of Applicants' already operable resort, the amount of increased boat and RV traffic on the section of the lake. Applicants' variance request will not alter the character of the surrounding neighborhood. As a result, the BOA's decision to approve Applicants' request was reasonable. III. THE COURT SHOULD REMAND THIS CASE BACK TO THE BOA IF IT DETERMINES THERE IS A LACK OF FINDINGS SUPPORTING THE DECISION. If this Court finds the BOA did not issue any findings to support the grant of the variance, the Court should remand the case to the BOA so it may make findings regarding its approval. In general, if a zoning authority denies a variance based on 11 insufficient evidence, the denial is arbitrary and capricious and the court should order issuance of the permit. In re Stadsvold, 754 N.W.2d at 332-33 (citing In re Livingood, 594 N.W.2d 889,895 (Minn. 1999)). However, an exception to the general rule exists when the zoning authority's decision is premature and not necessarily arbitrary. Earthburners, Inc. V. County of Carlton, 513 N.W.2d 460,463 (Minn. 1994). In Earthburners, the Supreme Court remanded a case to the zoning authority to allow renewed consideration of the application because it was unclear whether the zoning authority had applied the relevant provisions of the statute. Id. On remand, the zoning authority was directed to confine its inquiry to those issues previously raised. Id. In Stadsvold, the Otter Tail County Board of Adjustment denied an after-the-fact variance without articulating the reasons for its decision. In re Stadsvold, 754 N.W.2d at 332. The Supreme Court applied Earthburners and remanded the denial of an after-the-fact variance to the zoning authority and required the authority to apply the proper legal standard and articulate the reasons for its decision with specific reference to the relevant ordinance provisions. Id. at 333. Here, the BOA granted the variance request, but the Appellants argue the BOA failed to make findings in accordance with Minnesota Statutes §§ 394.22 and 394.27. Appellants' Memorandum of Lazo, p. 10. Based upon the Earthburners and In re Stadsvold cases, the Court should remand this matter with an order directing the BOA to reconsider the variance and make written findings supporting its decision. 12 CONCLUSION The variance granted by the BOA is in the best interests of Otter Tail County, the Township of Dead Lake, and the community where it is located. The variance was lawfully granted. Minnesota Statutes Chapter 394.27, Subdivision 7 allows a variance to be granted when "practical difficulties" to abiding by the variance are presented. See In re Stadsvold, 754 N.W.2d at 329. "Practical difficulties" means the property owner proposes to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Additionally, the variance must not be granted for purely economic purposes. The variance granted by the BOA allowing for the requested expansion of Applicants' resort falls within these parameters and should be upheld. Alternatively, if the Court finds the BOA failed to set forth findings which support its decision, this matter should be remanded back to the BOA for further findings consistent with its approval of the variance. IVERSON REUVERS CONDON Dated: March 27,2015 By JasorvT l^droushek, #0304037 Attorneys for Respondent 9321 Ensign Avenue South Bloomington, MN 55438 Phone: (952) 548-7200 Fax: (952) 548-7210 jasonk@irc-Iaw.com 13 STATE OF MINNESOTA) )ss.AFFIDAVIT OF SERVICE COUNTY OF HENNEPIN) Becky Eitreim, City of Savage, County of Scott, State of Minnesota, being duly sworn, says that on March 27,2015, she served the annexed Respondent's Memorandum of Law in Support of Summary Judgment and in Response to Appellants' Memoranda of Law in Support of Summary Judgment on the below listed attorneys for the parties in this action, by SENDING VIA FACSIMILE and by mailing to them a copy thereof, enclosed in an envelope, postage prepaid, and by depositing the same in the post office at Bloomington, Minnesota, directed to said attorneys, at their last known addresses: Matthew J. Loven RINKE NOONAN 1015 West St. Germain Street, #300 P.O. Box 1497 St. Cloud, MN 56302-1497 FAX: 320-656-3500 iI Becky Eitrei SUBSCRIBED AND SWORN TO before me on March 27,2015. ^^N^^TPublic JASON J. KUBOUSHEK Notary Public-MInnesota My Commiselon Expires Jan 31, 2020 I Bill Kalar David Hauser Thursday, January 29, 2015 9:52 AM 'Northern Lights Resort' Bill Kalar RE; Northern Lights Resort and Dead Lake Association From: Sent: To: Cc: Subject: We just received a letter from our attorney reporting on the status of the appeal. Court scheduling often changes, but here is the current situation: Since our last report, I have attended a Scheduling Conference with Judge Senyk. As you will recall, this case involves the appeal of a grant of a variance for docks on the Northern Lights resort. Judge Senyk is very familiar with land use cases and accordingly set the Scheduling Order to allow for the submission of the Administrative Record followed by Cross- Appellate Briefs, Cross-Reply Briefs and a hearing. The Administrative Record is to be submitted to the Court by February 16. The parties will then be submitting Cross-Appellate Briefs on March 27 and Cross-Reply Briefs on April 10. The matter is seheduled to be heard by Judge Senyk on April 20 at 11:30 a.m. David J Hauser OTTER TAIL COUNTY ATTORNEY 121 West Junius Avenue Fergus Falls, MN 56537 218-998-8406 m From: David Hauser Sent: Monday, January 26, 2015 6:56 PM To: 'Northern Lights Resort' Cc: Bill Kalar Subject: RE: Northern Lights Resort and Dead Lake Association Bill Kalar tells me he has a preliminary meeting with the public works committee of the County Board on February 3. David J Hauser OTTER TAIL COUNTY ATTORNEY 121 West Junius Avenue Fergus Falls, MN 56537 218-998-8406 1 V Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Thursday, January 29, 2015 9:24 AM Jeff Hentges (jhentges@mcit.org) David Hauser; Bill Kalar 14PE0164; Dead Lake Association v. Otter Tail County 1 28 15.pdf From: Sent: To: Cc: Subject: Attachments: Good morning Jeff, Please see the attached report. Feel free to contact me with any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonkfg),irc-law.com www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 { Iverson Reuvers Condon ATTORNEYS AT LAW (S )\XJanuary 28, 2015 MarkJ. Condon Jon K. Iverson Paul D. Reuvers Jason J. Kuboushek Jason M. Hiveley Susan M. Tindal Stephanie A. Angolkar Andrea B. Smith Nathan C. Midolo Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 RE: Dead Lake Association v. Otter Tail County Claim No: 14PE0164 Our File No. 200.1332 Dear Mr. Hentges: Since our last report, I have attended a Scheduling Conference with Judge Senyk. As you will recall, this case involves the appeal of a grant of a variance for docks on the Northern Lights resort. Judge Senyk is very famihar with land use cases and accordingly set the Scheduling Order to allow for the submission of the Administrative Record followed by Cross- AppeUate Briefs, Cross-Reply Briefs and a hearing. The Administrative Record is to be submitted to the Court by February 16. The parties will then be submitting Cross-Appellate Briefs on March 27 and Cross-Reply Briefs on April 10. The matter is scheduled to be heard by Judge Senyk on April 20 at 11:30 a.m. I will report back once we submit the Administrative Record to the Court. Please do not hesitate to contact me with any questions. Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: iasonk@irc-law.com David Hauser, County Attorney Bill Kalar, Planning & Zoning Administrator cc: 9321 Ensign Avenue South | Bloomington, MN 55438 | 952.548.7200 I fax: 952.548.7210 | www.irc-law.com m From: Northern Lights Resort rmailto:nlr@northernliahtsresort.com1 Sent: Monday, January 26, 2015 2:31 PM To: David Hauser Subject: Northern Lights Resort and Dead Lake Association Hi David, I am wondering what the progress is and/or any future plans. You can email me or call 218-758-2343. Thanks C h&tyh proiOiihO Northern/ LLghtyKe^,ort “Come/ and/ Enjoy the/ Qood/ L Ofe/” 2 Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Monday, January 12, 2015 6:31 AM Jeff Hentges (jhentges@mcit.org) Bill Kalar; David Hauser Dead Lake Association v. Otter Tail County; #12PE0164 From: Sent: To: Cc: Subject: Good morning Mr. Hentges, I wanted to give you a quick update on this file. We just received the hearing transcripts back from the Court Reporter. We will now begin finalizing our Summary Judgment motions. I will forward the motions when they are complete. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk(fl)jrc-law.com I ^04 www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Friday, October 31, 2014 11:07 AM Jeff Hentges (jhentges@mcit.org) Bill Kalar; David Hauser Dead Lake Association v. Otter Tail County; #12PE0164 10 3114.pdf; Response to Notice of Appeal.pdf From: Sent: To: Cc: Subject: Attachments: % Good morning Jeff,% Please see the attached report and Answer. Feel free to contact me with questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile: 952-548-7210 iasonk(a)irc-law.com www.irc-law.com This communication (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. 1 Iverson Reuvers Condon ATTORNEYS AT LAW (S ) Mark J, Condon Jon K. Iverson Paul D. Reuvers Jason J. Kuboushek Jason M.Hiveley Susan M.Tindal Stephanie A. Angolkar Andrea B. Smith Nathan C. Midolo October 31, 2014 N. Jeff Hentges MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST 100 Empire Drive, Suite 100 St. Paul, MN 55103-1885 RE: Dead Lake Association v. Otter Tail County Claim No: 12PE0164 Our File No. 200.1332 Dear Mr. Hentges: Since receipt of this file, we have filed a Response to Appellant’s Notice of Appeal. A copy of that Response is enclosed for your file. This case involves a challenge to the granting of a variance to the Northern Lights Resort to add 11 RV sites and 11 boat slips. Appellants are challenging the granting of the variance arguing the record does not support the variance nor did the applicant meet their burden of showing practical difficulties. We have discussed this case with staff and have received documents necessary to put together the Administrative Record. Staff fully admits this will be a difficult decision to defend. Once we have an opportunity to review the transcripts of the proceedings, we will be in a better position to fully assess our likelihood of success on this matter. We will report back once we have compiled the Administrative Record and have received the transcripts from the Board of Adjustment hearing. Please do not hesitate to contact me with any questions. Sincerely, IVERSON REUVERS CONDON Jason J. Kuboushek Direct: (952)548-7206 E-mail: jasonk@irc-law.com 9321 Ensign Avenue South I Bloomington, MN 55438 I 952.548.7200 I fax: 952.548.7210 I www.irc-law.com October 31, 2014 Page 2 Enclosure David Hauser, County Attorney Bill Kalar, Planning & Zoning Administrator cc: 'j. STATE OF MINNESOTA DISTRICT COURT COUNTY OF OTTER TAIL SEVENTH JUDICIAL DISTRICT In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., of the September 11,2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro’s Properties, LLC d/b/a Northern Lights Resort Court File No. 56-cv-14-2852 % % —XOTTER TAIL COUNTY BOARD OF ADJUSTMENT’S RESPONSE TO NOTICE OF APPEAL BY PHYLLIS FREEMAN AND THE DEAD LAKE ASSOCIATION Otter Tail County Board of Adjustment (“BOA”), for its Response to Phyllis Freeman and Dead Lake Association’s Notice of Appeal, states and alleges as follows: The BOA denies each and every matter, allegation or thing contained in the1. Notice of Appeal, except as may be hereinafter admitted or qualified. The BOA admits the allegations contained in paragraphs 1 and 2 of Phyllis2. Freeman and Dead Lake Association’s Notice of Appeal. With respect to the allegations contained in paragraph 3 of the Notice of Appeal,3. the BOA admits it may, pursuant to Minn. Stat. §394.27, issue a variance from the requirements of the official zoning controls when the property owner establishes there are “practical difficulties” in complying with the official zoning controls. 4.With respect to the allegations contained in paragraphs 4 and 5 of the Notice of Appeal, the BOA admits said allegations. With respect to the allegations contained in paragraph 6 of the Notice of Appeal,5. the BOA admits Dead Lake is a “natural environment” lake under the Otter Tail County Shoreland Management ordinance. With respect to the allegations contained in paragraph 7 of the Notice of Appeal,6. the BOA admits on May 20, 2014, the Otter Tail County Board of Commissioners approved a CUP on the condition the applicants secure necessary variances from the BOA. With respect to the allegations contained in paragraphs 8-10 of the Notice of7. Appeal, the BOA admits said allegations. With respect to the allegations contained in paragraph 11 of the Notice of Appeal,8. the BOA admits Mr. Kaler recalculated the allowable densities and boat slips for the property. 9.With respect to the allegations contained in paragraph 12 of the Notice of Appeal, the BOA admits said allegations. 10. With respect to the allegations contained in paragraph 13 of the Notice of Appeal, the BOA admits the Property Characteristics worksheet created by Bill Kaler on September 10, 2014, and the Otter Tail County BOA meeting minutes from September 11, 2014 speak for themselves. With respect to the allegations contained in paragraphs 14 and 15 of the Notice of11. Appeal, the BOA admits a motion to approve 11 campsites and 11 boat slips was made and approved. 12. With respect to the allegations contained in paragraphs 16-24 of the Notice of Appeal, the BOA denies said allegations. The BOA affirmatively alleges its decision was not arbitrary, capricious or an13. abuse of discretion and was lawful and proper in all respects. 2 14. The BOA affirmatively alleges its decision was based upon substantial evidence in the record. WHEREFORE, Respondent BOA prays Appellants take nothing by their pretended claim for relief and the Complaint be dismissed, together with costs, disbursements and such other relief as the Court deems just and equitable. IVERSON REUVERS CONDON Dated: Z N By.1 K<Tboushek, #0304037 Attorneys TOr Otter Tail County 9321 Ensign Avenue South Bloomington, MN 55438 Telephone: (952) 548-7200 Fax:(952) 548-7210 iasonk@irc-law.com Jasi ACKNOWLEDGMENT The undersigned hereby acknowledges that costs, disbursements and reasonable attorney and witness fees may be awarded to the opposing party or parties pursuant to M.S. § 549.211. By J>»TOi^/^Kuboushek, #0304037 3 Bill Kalar Nicole Hansen Friday, October 10, 2014 9:33 AM David Hauser; Bill Kalar; Wayne Stein; Larry Krohn FW: Phyllis Freeman and Dead Lake Association, Inc. V. Otter Tail County — MCIT Claim Number: 14PE0164 From: Sent: To: Subject: I will advise Mr. Kuboushek that David is the primary contact and Bill will have information regarding the appeal as well. Please note that we are now on a litigation hold and all data or information pertaining to the claim should not be destroyed or deleted. From: Jeff Hentges rmailto:ihentaes@mcit.ora1 Sent: Friday, October 10, 2014 9:09 AM To: Nicole Hansen Cc: 1asonk@irc-law.com Subject: Phyllis Freeman and Dead Lake Association, Inc. V. Otter Tail County - MCIT Claim Number: 14PE0164 Ms. Hanson, We have assigned Jason Kuboushek from the Iverson, Reuvers, Condon law firm to defend Otter Tail County and its BOA in this lawsuit. Mr. Kuboushek will be in touch with you shortly. Please advise him of all appropriate parties within Otter Tail County that should be contacted relative to this matter, and/or copied on correspondence from Mr. Kuboushek. His contact information is as follows: '^eiveo ID 2BH Jason Kuboushek Iverson Reuvers Condon 9321 Ensign Avenue South Bloomington, MN 55438 PH 952-548-7205 iasonk@irc-law.com I will handle the claim for MCIT, under Claim Number 14PE0164. I can be reached at 651-209-6441, or ihentges@mcit.org. Please forward this e-mail to those within the county that will be involved in the investigation and defense of this claim, and ensure that no data or information that may be relative to the claim is destroyed or deleted. Please feel free to contact me with any questions. Thank you. Jeffrey Hentges Claims Department Minnesota Counties Intergovernmental Trust 651-209-6441 1 IOctober 9, 2014 Page # 4 Thunder Shores Inc. - Variance application approved as requested with a condition. (Continued) Kris Svingen and Paul Jensen represented the applicant at the public hearing. The audience was polled with no one speaking for or against the variance as requested. After consideration and discussion, Paul Larson made a motion, second by Robert Schwartz and unanimously carried, to approve the proposed subdivision as stated in the variance application dated September 18, 2014 with the condition that a registered surveyor’s drawing must be provided at the time of conveyance. The granting of this variance will settle an outstanding legal matter. Jon and Debra Opatz - Approved the variance for the dwelling as requested and denied the variance as requested for the shed. (8:05 p.m.) Jon and Debra Opatz, Lot 12 Preston’s Lakeview Beach and Lot 1 Block 1 Preston's Lakeview Beach First Addition, Jewett Lake in Elizabeth Township, requested the following: Add a 12’ by 24’ addition to dwelling. Lift up existing 18’ by 24’ portion of dwelling to replace foundation or replace this section. New roof over entire dwelling (existing dwelling 44’ from ordinary high water level). Requesting 31 ’ variance for addition and dwelling from the required ordinary high water level required setback of 75’. Remove existing sheds, replace with 10’ by 15’ shed. New shed will be no closer to ordinary high water level than existing sheds (approximately52-55’). The shed will be 12” from the property line. Requesting a 9’ variance from the required side lot line setback of 10’ for placement of the replacement shed one foot from the side lot line. The audience was polled with no one speaking for or against the variance as requested. After consideration and discussion, Paul Larson made a motion, second by Thomas Lee and unanimously carried, to approve a variance of 3T from the required ordinary high water level setback of 75’ for a 12’ by 24’ addition to an existing dwelling and for the proposed improvements to the existing dwelling as detailed in the variance application dated September 18, 2014 and to deny the variances as requested for the proposed shed replacement project. The variance as granted does not directly or indirectly grant any other variances for the proposed or future development. With no further business, Steve Schierer, Chairman declared the meeting adjourned at 8:15 p.m. Note - Upon adjournment the Board went into a dosed session to discuss pending litigation. A copy of the Notice of Appeal has been attached to these minutes. Prepared by: Wayne S^gin, Secret;-A The minutes were mailed on Monday, October 13, 2014 to the Otter Tail County Board of Adjustment. Official action regarding these minutes will be taken by the Board of Adjustment at their next regularly scheduled meeting. / i loj^/\H - C£>hcS TD : ' AUii Bar A f^UjOLC U.4) ^ U.ATH^ d. ^ 4AM4^'^i7M^T^)A.'s • /^e«2u<r^7LV Stic /^Au^AAJ Tv ^ Li‘fLSrr\Ff ^ rv»»r/4Ct/n4»;r 71-41^• T7S « /S6 • iE C itfn^ Be 4nTH0i./< httF A i^rc} Bill Kalar Nicole Hansen Thursday, October 09, 2014 10:59 AM Joe Rieder (jrieder@mcit.org) David Hauser; Bill Kalar Notice of Appeal doc01418020141009094031.pdf From: Sent: To: Cc: Subject: Attachments: Hi Joe - Please find attached a copy of the Notice of Appeal regarding the County's Board of Adjustment. The primary contact is David Hauser, County Attorney. His phone number is 218-998-8406 and email is dhauser(5)co.ottertail.mn.us . Bill Kalar is the Land and Resource Manager and may also needed to be contacted during this process. His phone number is 218-998-8105 and his email is bkalar@co.ottertail.mn.us . Please let me know if you need any other information and thank you for your assistance this morning. Nicole Nicole Hansen Human Resources Director 520 Fir Avenue West Fergus Falls, MN 56537 218-998-8070 phone nhansen@co.ottertail.mn.us Confidentiality Notice: The unauthorized disclosure or interception of e-mail is a Federal Crime. See 18 U.S.C Sec. 2517(4). This e-mail message, including any attachments, is for the sole use of the attended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. 1 Case Type: Other Civil DISTRICT COURTSTATE OF MINNESOTA COUNTY OF OTTER TAIL SEVENTH JUDICIAL DISTRICT In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., Court File No. of the September 11, 2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro’s Properties, LLC NOTICE OF APPEAL d/b/a Northern Lights Resort JURISDICTION Otter Tail County has adopted land use controls under Minnesota Statutes Chapter1. 394. Otter Tail County has established a Board of Adjustment (“BOA”) pursuant to Minn. Stat. § 394.27. Otter Tail County exercises land use and zoning control in Dead Lake Township. Phyllis Freeman, individually and as president of Dead Lake Association, Inc., is2. a landowner and resident of Dead Lake Township and is a person within the meaning of Minn. Stat. § 394.27, Subd. 9, with standing to appeal the decision of the BOA to the district court in Otter Tail County. STANDARD OF REVIEW Otter Tail County BOA acting under Minn. Stat. §394.27 may issue a variance3. from the requirements of official zoning controls when the property owner establishes that there are “practical difficulties” in complying with the official zoning controls. See: Minn. Stat. § 394.27, Subd. 9. “Practical difficulties,” as used in connection with granting a variance, means that the property owner has met the criteria under Minn. Stat. § 394.27, Subd. 7. See: In re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) for six factors needed to meet the statutorily required “practical difficulties” standard. Economic considerations alone do not constitute ■ y[17198-0003/1869706/1]1 / “practical difficulties”. See; Minn. Stat. § 394.27, Subd. 7. FACTS Pro’s Properties, LLC d/b/a Northern Lights Resort (“Applicant”) is a registered4. owner of property lying in Dead Lake Township identified as PID# 14000250197001 in Otter Tail County. Applicant operates the Northern Lights Resort on this property (the “Resort”). Applicant wishes to purchase a 6.3 acre tract of land southerly of and adjoining5. the existing Resort identified as PID# 14000250197011 in Otter Tail County (the “Property”). The Applicant proposes to build dwelling units in the form of seasonal campsites on the Property and install boat slips on the adjacent Dead Lake. Dead Lake is a “Natural Environment” lake under the Otter Tail County6. Shoreland Management Ordinance (the “Ordinance”). Natural Environment lakes are shallow, environmentally fi:agile, and have strict regulations on use and development. See; Minnesota Rule 6120.3000, Subp. la (A). Pursuant to the Ordinance, the proposed development on Natural Environment7. lakes requires a conditional use permit (“CUP”). See; Shoreland Management Ordinance of Otter Tail County, Section III, Subp. 2. On May 20, 2014, the Otter Tail County Board of Commissioners (the “Commissioners”) approved a CUP on the condition that Applicant secure necessary variances from the BOA. See; Otter Tail County Board of Commissioners ’ Minutes, 05/20/2014. Pursuant to the Ordinance, the dimensions and size of the Property allows8. Applicant two (2) dwelling units in the First Tier shoreland, one (1) dwelling unit in the Second Tier shoreland, and two (2) boat slips on a Natural Environment lake. See; Otter Tail County Shoreland Management Ordinance. See; Property Characteristics Worksheet. Bill Kaler, [17198-0003/1869706/1]2 09/10/2014 (the “Worksheet”). 9. Applicant originally appeared before the BOA on June 12,2014, to request a variance for four (4) dwelling units in the First Tier, eleven (11) dwelling units in the Second Tier, and fifteen (15) boat slips. See: Otter Tail County BOA Meeting Minutes, 06/12/2014. 10. Otter Tail County Land and Resources Director, Bill Kaler, explained that pursuant to the Ordinance, Applicant is allowed two (2) dwelling units in the First Tier, one (1) dwelling unit in the Second Tier, and two (2) boat slips on a Natural Environment lake. See: Id. The BOA tabled Applicant’s variance application and directed Mr. Kaler to11. recalculate the allowable density of dwelling units and boat slips on the Property using a commercial development formula instead of the density formula used by Otter Tail County. See: Id. 12. On September 11, 2014, the BOA considered a revised variance application fi-om the Applicant for eleven (11) dwelling units in the Second Tier and twelve (12) boat slips See: Otter Tail County BOA Meeting Minutes, 09/11/2014. Mr. Kaler again explained that pursuant to the Ordinance Applicant is allowed a13. maximum of two (2) dwelling units in the First Tier, one (1) dwelling unit on the Second Tier, and two (2) boat slips on a Natural Environment lake, however under a commercial development formula not adopted by Otter Tail County Applicant would be allowed five (5) dwelling units in the First Tier, six (6) dwelling units in the Second Tier, and five (5) boat slips. See: Property Characteristics Worksheet. Bill Kaler, 09/10/2014. See: Otter Tail County BOA Meeting Minutes, 09/11/2014. 14. After discussing the economic benefits of resorts in Otter Tail Coimty the BOA made a motion to approve eleven (11) dwelling units in the Second Tier and five (5) boat slips [17198-0003/1869706/1]3 based on the commercial development formula. After further discussion it was suggested that each dwelling unit should have its own boat slip. The original motion was withdrawn and a new motion to approve eleven (11) campsites and eleven (11) boat slips was made. See: Id. 15. A representative of the Dead Lake Association, Inc., asked the BOA to articulate “practical difficulties” pursuant to Minn. Stat. § 394.27, Subd. 7. The BOA noted the importance of increasing tourism and protecting resorts in Otter Tail County as “practical difficulties.” The motion carried. See: Id. COUNT I The BOA’s decision was arbitrary and capricious because the BOA failed to consider all factors required by law. 16. An area variance by a coimty zoning authority is legally permissible only when the applicant shows “practical difficulties” in carrying out the strict letter of any official control. See: In re Stadsvold, 754 N.W.2d at 331; Minn. Stat. § 394.27, Subd. 7: The Minnesota Supreme Court has articulated the following factors for17. consideration when applying the “practical difficulties” standard: (1) How substantial the variation is in relation to the requirement; (2) The effect the variance would have on government services; (3) Whether the variance will affect a substantial change in the character of the neighborhood or be a substantial detriment to neighboring properties; (4) Whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) How the practical difficulty occurred, including whether the landowner created the need for a variance; and (6) Whether in light of all the stated factors, allowing the variance will serve the interest of justice. See: In re Stadsvold, 754 N.W.2d at 331. 18. The BOA made insufficient findings of fact to address these factors. [17198-0003/1869706/1]4 19. In addition to considering these six factors, a county zoning authority must apply the “practical difScuIties” standard to the relevant provisions of the Ordinance and “articulate the reasons for its ultimate decision.” See: Id at 332. Pursuant to the Ordinance, the relevant provisions for consideration by the BOA include; (1) whether the variance is in harmony with the general purposes and intent of the Ordinance; (2) whether the applicant established “practical difficulties” in complying with the Ordinance; (3) whether applicant has presented “practical difficulties” beyond economic considerations; (4) whether the variance is needed to secure for the applicant rights that are enjoyed by other landowners in the same area; and (5) whether granting the variance will be contrary to the public interest or damaging to the rights of other persons or property values in the neighborhood. See: Shoreland Management Ordinance of Otter Tail County, Section V, Subp. 6. 20. The BOA articulated irrelevant “practical difficulties” to these provisions of the Ordinance. The BOA’s findings of fact on “practical difficulties” consisted of the following;21. “The variance as approved supports the commercial resort industry and recognizes the important role resorts have both environmentally and economically.” See: Otter Tail County BOA Meeting Minutes, 09/11/2014. These findings are irrelevant and contrary to the statutorily required “practical difficulties” standard which states economic considerations are not “practical difficulties.” See: In re Stadsvold, 754N.W.2dat 331; Minn. Stat. § 394.27, Subd. 7; and Shoreland Management Ordinance of Otter Tail County, Section V, Subp. 6 (C). [17198-0003/1869706/11 5 COUNT 2 The boa’s decision was arbitrary and capricious because the BOA used a commercial development formula to calculate allowable density that is not allowed in Otter Tail County. 22.The BOA directed Mr. Kaler to calculate allowable density on the Property pursuant to a commercial development formula that is not allowed in Otter Tail County. See: Otter Tail County BOA Meeting Minutes, 06/12/2014. See: Property Characteristics Worksheet, Bill Kaler, 09/10/2014. See: Otter Tail County BOA Meeting Minutes, 069/11/2014. The BOA used the commercial development formula as justification to grant Applicant’s variances. See: Id. There are no “practical difficulties” pursuant to statutory law, case law, and the23. Ordinance which justify granting the Applicant variances for eleven (11) dwelling units and eleven (11) boat slips on a Natural Environment lake. 24. As a matter of law, these variances should be vacated and denied. WHEREFORE, the Appellants request relief as follows: For an Order Vacating Variances for the 11 dwelling units and 11 boat slips1. granted by the Otter Tail Comty Board of Adjustment on September 11, 2014, on the basis that the BOA acted arbitrarily and capriciously, that neither the Applicant nor the BOA established “practical difficulties” as required by law under Minn. Stat. § 394.27, Subd. 7, that the BOA used a commercial development formula to calculate allowable density not approved by Otter Tail Covmty, and that the BOA failed to make findings of fact required under the Shoreland Management Ordinance of Otter Tail County. 2.For the recovery of the Appellants’ costs and disbursements, all as provided by law. [17198-0003/1869706/1]6 . V 3.For such other and further relief as the court deems just and equitable. Dated: October 2014 REVKE NOONAN ■— 0391774 ■r By: Matthew J. tqven,'# Attorney for Appellants 1015 West St. Germain Street, #300 P.O. Box 1497 4. St. Cloud, MN 56302-1497 (320)251-6700 Our File No. 17198-0003 ACKNOWLEDGMENT The party above, through counsel, hereby acknowledges that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party pursuant to Minn, Stat. § 549.211, Subd. 2. ■■_____.vr^ - Mattliew J. Loven, #0391774 [17198-0003/1869706/1]7 Otter Tail County, Planning Commission October 8,2014, Page 4 Beauty Bay LLP, Tom Wold/Herzon - Approved As Revised: A Conditional Use Permit Application (as stated by the Applicant on the Application): Proposed project includes a 2 story year round dwelling with a walkout basement and boulder retaining walls approximately 40 feet in length, 7’ high leveling out to O'. Project also required removal of existing structure on property. Also, to include new septic tank, drainfield and well locations. Excess fill will be taken by owner and used to fill low spots on property across road (to the south) which is property of the owner’s as well. Cabin project to be completed by Spring/Summer of 2015. Project proposed to begin Fall of 2014. The proposal is located in Haugen’s Knollwood Lot 1, Section 8 of Dunn Township: Pelican Lake (56-786), GD. Chris Hawley (Chris Hawley Architect) represented the Application. Motion: A motion by Wilson, second by Gill to approve the revised plan received by Land & Resource Management on September 25, 2014, provided Land & Resource receives the impervious surface calculations for the building(s) and the total lot area confirming compliance with the Shoreland Management Ordinance; work may be done this fall with appropriate erosion control measures. Voting: All Members in favor. Northern Lights Resort Variance Approval - Appealed by the Dead Lake Association: Bill Kalar informed the Commission that the Dead lake Association has appealed the Variance approval for Northern Lights Resort, Dead Lake (56-383), NE. Adjourn: At 9:40 P.M., Chairman Olson set the Meeting. The next Meeting is scheduled for 6:30 P.M. on November 12, 2014, Respectfully submitted, Marsha Bowman Recording Secretary 0\L\ '\v’< Bill Kalar From: Sent: David Hauser Wednesday, September 17, 2014 5:50 PM Bill Kalar FW: Possible Lawsuit against the County To: Subject: 20iifBill, Give me a call about this email, and you request to discuss the MOD with OTLWMD. ^NO David 8406 From: Mike or Cheryl Harris rmailto:mcharris4455@hotmail.com1 Sent: Wednesday, September 17, 2014 9:38 AM To: Doug Huebsch; Wayne Johnson; Lee Rogness; Roger Froemming; John Lindquist; David Hauser; Larry Krohn Subject: Possible Lawsuit against the County Gentlemen, It has come to my attention the the Dead Lake Association (DLA) is potentially pursuing a lawsuit against the County for the variance granted to Northern Lights Resort. Since my tax dollars are involved as well as all those who pay taxes in Otter Tail County, I would encourage you to direct the County Attorney, David Hauser, to vigorously defend the County's position in this matter. I would also strenuously encourage you, as Commissioners, to pursue the inclusion of a commercial section In the Shoreland Ordinance of Ottertail County. The commercial section could very easily be written for existing resorts only and solve a lot of problems regarding the potential loss of resorts in the future, thereby costing the County and its residents not only tax revenue, but tourism dollars as well. Are you aware that a member of the DLA inserted himself into the personal business of the Prososki's and contacted the realtor to inform her not only of the variance granted, but that the DLA will most likely 1 ♦ '4 % ‘ pursue a lawsuit to quash the variance? Not only is the DLA strong- arming the County with if s methods, but acting as the sole enforcer and a bully towards the Prososki's. That action by the DLA member, in my opinion, crosses any line of civility. Cheryl Harris 38019 Dead Lake Road Richville,MN 56576 218-495-2717 2 AGENDA Otter Tail County Board of Adjustment Thursday, September 11, 2014OTTCItTfliteftaatt-aicAtiare 5:45 p.m. - Building open to the public 6:30 p.m. - Meeting Starts 6:30 p.m. - Approve Minutes - August 14, 2014 6:30 p.m. - Parcel No. 52-000-99-0310-000 52-000-99-0311-000 29-000-99-0583-900 13-000-04-0017-001 13-000-99-0235-000 18-000-11-0076-010 18-000-99-0330-000 18-000-02-0010-001 16-000-36-0209-003 Lake/River Big Pine (56-130) East Battle (56-138) Wall (56-658) Physical Address 44812 Grand View Trail - 56573 23988 Liberty Trail- 56551 21017 Elk Point Road - 56537 Township Pine Lake - Sec. 7 Name Richard A & Linda L Swenson Rotenberger Trust Rebecca Dowzak Et Al Girard - Sec. 26 Dane Prairie - Sec. 4 Eagle Lake - Sec.38694 North Eagle Lake - 56515Eagle (56-253)Thomas Terfehr 11 Dora - Sec. 36 Maplewood - Sec. Round (56-522) Crystal (56-739) 40965 Willow Road - 56528 Located - 400’ North of 35066 County Highway 3 - 56534 44920 Plentywood Rd - 56573 Douglas W. Gullekson Daren and Amy Tollefson Mark & Kara Kirckof 39-000-28-0241-00328 Rush Lake - Sec.53-000-99-0360-000Rush (56-141)14 7:30 p.m. - West McDonald (56-33034 Mac Circle - 56528 35387 Northern Lights TrI - 56576 Nearest - 22898 Senns Beach Road - 56501 38925 397"’ St. - 56528 Hoiberg Family LLC Dora - Sec. 24 386) 14-000-25-0197-001 14-000-25-0197-011 Dead Lake - Sec.Pro’s Properties LLC Dead (56-383)25 17-000-05-0068-000Helen Huseby Et Al Dunn - Sec. 5 Pelican (56-786) Dead Lake - Sec.14-000-99-0644-000Mark & Erika Sailer Marion (56-243)2 Previously Tabled Item Scheduled for Hearing at the September 11, 2014 Meeting - Between 25915 Pierce Trail and 25835 Pierce Lane - 56572 40418 Misty Lane - 56576 37-000-27-0138-017Dale Pierce ET AL Randolph O. Halvorson Rush Lake - Sec. Lida (56-747)Lida - Sec. 27 53-000-07-0036-013Marion (56-243)Tst 7 RECEiveo Notice of Hearing for Variance otter Tail County Government Services Center SIOFirAveW Fergus Falls. MN 56537 Phone - (218) 998-8030/998-8041 Email - wstein@co.ottertail.mn.us Web Address -www.co.otter-tail.mn.usOTT€RTim Applicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern: Pro’s Properties LLC 35387 Northern Lights Trail Richville, MN 56576 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 A ^ Zo Thifrsd 3y pJ u no I^t-20 14~€it~773^p7m:j 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 Government Lot 9, Property Address - 35387 Northern Lights TrI Section 25, Township 135, Range 40 - Township Name-Dead Lake No. 56-383, Lake Name - Dead, Class - NE The variance requested is the following:\Z.to.We would like to eventually place ^ seasonal boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a conditional use Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort, campsites with permit recommendation for approval at the May 14, 2014 Planning Commission meeting and final conditional use permit approval from the Otter Tail County Commissioners at their May 20“’, 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustment to grant the following: S We are requesting a variance from the 30 foot bluff setback (the closet point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to'’4 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original dedicated public road corridor laid out in the plat of DeSchane Beach. 1. ■ir -----------tho bluff). There will be ne pad, RV er structures within the 30 foot bluff setback. -----Wo pro requeoting o vorionce from tho 50 foot buffer (the eiooot point of tho cxieting troll lioo 6 foot from tho property lino) for these pertiono-ef tho-existiflg --------wolking trail lying within the 60 foot buffer along tho northwcotorly part of tho 6.3 aore troot whioh prevido walking-eoooes to tho loko. Thio will climinote— ■4----hoving to oonotruot o now walking trail. •»-4:-----Wo ore foquooting o varionoo from tho Tier 1 donoity ootoulotlon ooroos tho 6i3 aoro tract for 2 of tt>o 4 coaoonal-oampsitoG.—t,, /f. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 3. Jr We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for'VS of the >6 boat slips. \o IVWe would also like to note the total impervious surface for this tract of land will be less than 19% We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. Stein Board of Adjustment Secretary Date: May 23, 2014 i I S'm'TE UIC5 PMjv'a/(50 UH\T DBVBLofi^rf\e^JT _CPuS) Hit ktSiOSfJTift^ U>r S/2£ /9*^ The rt\i4iXifiuE^ DiBPBa. Fki>fr\ OU(L OfU^ltJAfJCJE a 5 3c **■ ^ssiae^TiHL Lot Si2£' o1,\r RiemjAi^ ^ri£A.i) FT^ A/gW" A ^L/9^ ^ODODGO OCOt tu>iiC^CCfO 000h)E oov rr)uLTlfiLi£A^_ TIEK muiL:nfiutA^ I X uif^reA. FuarJTAcs 1__r\/i>r dEs^uiu /n' STAyTuics TJfifl. 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Ft4/> F^>e/nuut: _________________ r I Li>r Si2.t_\ ^xPAAkAi^__ CTmKFj3 Mlic _____fjct9 (n&^ ^7g-STAre g?r<.. a/5 ’^O^oa^ tlP^OCfd ^ ^ObO tfoO.OOO 4 - ^ Tieie ^VFtTc iS iSI I Ql i.^A.V. I 1.0 AP 3,0 AO ^,V AO 0 f i £) jme_STtm R^us i ____ P«4 STnrJCAAC^ jC a'nt. HAi..rJBj' fiCoPTe^^^____kSOlSATIO^Al^ UiJllT Ctloj')___HA^S fi " FLfiJ>i. fiOJEA “ Hot FT^ juMir COrr\fr\SAjCK&L. i F3 Ccrr\Pfyd/L\^C^l _ _ffl FkculTB.^. CAUm <A l7j>j>LL _____ _______^ ____Oi^ A<Ms^__C/nU ^TWriy OTC PTC. oo a. •'fi L^Cfe OT?£4 a___ TpV^lycA I rtv& a / Ko•L* ST»Tg___________ .- - fiesiacvti'K. - A__ ^IWCitXiiK. i LL6, ; Si ___________________ P(^ofi9-sM fUM^ De^in C "^/mJim) ■pfit /Tl£<i A 4-t 1 I / ^// ^//<p//M i:'l ! HI i EXISTING RESORT ItlPERVIOUS AREA CALCULATIONS CABIN I (6<^) + DECK (242) + STEPS (16) + CONC (IS) = STS S.F. CABIN 2 (BBS) + DECK (36) + STEPS (6) = 600 S.F. CABIN 3 (^S) + DECK (B6) + STB=S (!0) + CONC (27) = 623 S.F. CABIN 4 (B27) + DECK (4B) ■* CONC (Bl) = 623 S.F.SCALE IN FEETCABIN B (B63) + DECK (ITS) + STEPS (!6) + CONC (13) = 771 S.F.SCALE-. I INCH = 40 FEETCABIN 6 (B66) + DECK (B2) = 613 S.F. CABIN 7 (B42) + DECK (101) + CONC (40) = 683 S.F.BEARINGS ARE BASED ON OTTER TAIL COUNTY COCXiDINATES CABIN 3 (4S6) + DECK (64) + STEPS (6) + CONC (22) = 508 S.F.!SS6 ADJUSTHENT AS DETERITINED BY THE tlNDCT CORS/VRS NETTNCTSKCABIN S (46!) + DECK (64) + STEPS (S) -= B34 S.F. CABIN lO (1616) + DECK / (130) + STEPS I (34) + DECK 2 (3B) + STEPS 2 (4) + AC (6) = !37B S.F.DENOTE IRON ITONUMENT FOUND.NOUSE/GARAGE (2627) DECK (ABR) + STEPS (IB) + CONC (636) + LANDSCAPE (B) + AATTENNA (3) + AC (6) » S.F. BATHHOUSE (20!) + DECK (43) + STEPS (32) - 302 S.F.DENOTES IRON nONUtlENT SET HARKED ’PLS 13620 t !73^‘.FISH CLEANING SHED (!00) + CC3NC (43) - 143 S.F. BAIT SHED (133) + OONC (lO) = 133 S.F.® DENOTES MAGNETIC RING MITH BRASS PLUG SET MARKED 'PLS 13620 * I7B2B‘.SHED (123) + STORAGE SHED (240) + CONC (!6) - 334 S.F. GAME RCOM (BB3) + CONC (303) = 1067 S.F.MATER FLUSHING STATION (4) + HOLDING TANK hlASTE DISPOSAL (43) + FUEL TANKS ON CONC (B3) + PROPANE TANK (^) = BO S.F. BOAT LANDING (463) + GRAVEL (23222) + LANDSCAPE (14) + CONC SIDEMALK 4 STEPS (323) -f- BOARDMALK (■^) -» MOOD STEPS (103) - 30,371 S.F. DENOTES PONER7LIGHT POLE BY VISIBLE OBSERVATION. DENOTES OVERHEAD ELECTRIC LINE BY VISIBLE CBSERVATICN. D DENOTES HOOD DECK.<T73 + 600 + 623 -h 623 + 77! 613 + 683 + 588 + 334 -t- 1373 + 3845 + 302 -i- 143 -h m -h 334 + 1067 -t- BO -h 3037! = 44,333 AC DENOTE AIR CONDITIONER.44,538 + EXISTING PARKING {26 SPACES OUTSIDE OF EXISTING GRAVEL X (lO X 20) = 4‘?,738 STO DB40TES STORAGE SHED. 43,733/307,011 = I6.2X IMPERVIOUS SURFACE DENOTES TELE COMMUNICATIONS FED BY VISIBLE OBSERVATION.TELL, By VISIBLE OBSERVATION. VISIBLE OBSERVATION.OPERATING RESORT BY HATER FRONTAGE - 1375/125 U UNITS DENOTES MATER FLUSHING STATION.MF5 EXISTING RESORT TIER I CALCULATIONS:M O DENOTES MELL BY VISIBLE OBSERVATION. A RCV !2 DENOTES RECREATIONAL CAMPING VEHICLE POMER PEDESTAL.TOTAL AREA IN TIER I = 303,56^=1 S.F. PRCV DENOTES PROPOSED RECREATIONAL CAMPING VEHICLE.TOTAL AREA EXCLUDING:DENTES EXISTING CABIN.CABIN II. NETLANDS, BLUFFS, -13,347, -21,380 ■ —1350---------TEN FOOT CONTOUR INTERVAL FROMRON OR BELOH CX4HL SPOT ELEVATIONS AND LIDAR MAPPING. NET AREA = 263,842 S.F. BASE DENSITY OF DHELLING UNITS = 268,842/80,000 =DENOTES PROPOSED 60 X 40 RCV SITE MITH PARKING (2400 TOTAL 5.F.). tlAXinUn ALLOHABLE DENSITY PER TIER = 3.36 x 1.5 = 5.04/' CnA/iaiJT-C-l)TIER^ r NUrWEFT OT UNITS ALLONEE7 3 (C\EXISTING UNITS = !0 CABINS, 8 RVC SITES, I HOME, EXISTING RESORT TIER THO CALCULATICH5 ARE NEGLIGIBLE PROPOSED COMBINED PROPERTIES RESORT /3 uw iT6BY HATER FRONTAGE - 217+1375/125 = !2.7 UNITS PROPOSED RESORT TIER I CALCULATIONS: TOTAL AREA IN TIER I (303,56H + I46,({I5 + 13,207^ = 463,6^11 S.F. TOTAL AREA EXCLUDING:\/ yF i/*-^3, -21,380, -%I66, -2,837, -13,347yI. HETLANDS, BLUFFS, -38, <115, ROH OR BELOH OHHL NET AREA = 377,483 S.F. BASE DENSITY OF DHELLING UNITS = 377,483/80,000 =* MAXIMUM ALLOHABLE DENSITY PER TIER = 4.72 x 1.5 7J)6 7TIER / NUMBER OF UNITS ALLOHED = 7 = !0 CABINS, 8 RVC SITES, I HOME, £EXISTING UNITS PROPOSED RESORT TIER 2 CALCULATIONS: TOTAL AREA IN TIER 2 = 120,221 S.F. TOTAL AREA EXCLUDING-- I. HETLANDS, BLUFFS, -10,942, -19,090, -6,184 ROH OR BELOH OHHL NET AREA = 84,005 S.Fl BASE DENSITY OF DHELLING UNITS = 84,005/160,000 = 0.53 MAXIMUM ALLOHABLE DENSITY PER TIER = 0.53 x 1.5 = 0.79 TIER 2 NUMBER OF UNITS ALLCHNED EXISTING UNITS = O PROPOSED CENTRALIZED DOCK MITH !2 SUPSCOUNTY COMMISSIONERS ^ AT THEIR MAY 20, 2014 MEETING. CUP APPROVED BY THE OTTER TAIL PARCEL I4000250m005 }/ NEIGHBORS SHEDPROPOSED F^OROh-IASEi ON SKIDS MESLEY KUBE MICHAEL MEISMILLER PARCEL l400CX^I<r70l3PROPOSED PROPERTY TO BE PURCHASEDC)PARCEL 14000250137003 (/)BY WATER FRONTAGE- 217/125 =1.7 (2 UNITS) IUJ TIER 1 CALCULATIONS: TOTAL AREA IN TIER I {146,915 + 13,207/ = 160,122 S.F. TOTAL AREA EXCLUDING: I. HETLANDS, BLUFFS, -14,342, -38,915, -563, -9,166, -2,837, = 65,823 ROH OR BELOH OHHL NET AREA = 160,122 - 65,823 BASE DENSITY OF DHELLING UNITS = 94,299/80,000 = 1.18 MAXIMUM ALLOHABLE DENSITY PER TIER = 1.18 x 1.5 = 1.77 (2 UNITS/ f O S£B A IkOR-m-SOUTH 1/4 LINETIER I NUMBER OF UNITS ALLCHED = 2 SEC. 25-133-40PROPOSED UNITS IN TIER 1 = 1^ TIER 2 CALCULATIONS: TOTAL AREA IN TIER 2 = 116,779 S.F. TOTAL AREA EXCLUDING: I. HETLANDS, BLUFFS, -7772, -25,274 = 33,046 ROH OR BELOH OHHL =f^^^^Js.F.NET AREA = !16, 779 - 33,046 ms 2BASE DENSITY CF DHELLING UNITS = 83,733/160,000 = 0.52 ^ 2Q1!{SHIRLEY RAMBERG MAXIMUM ALLOHABLE DENSITY PER TIER = 0.52 x 1.5PARCEL I40002BOI370I2 SOUTH !/4 CXKNER TIER 2 NUMBER OF UNITS ALLOWED = I SEC. 25-135-40XQBPROPOSED UNITS IN TIER 2 = II/ y\/ OWNER OF NORTHERN LIGHTS RESORT (APPUCANT) SURVEYOR'S CERTIFICATE CHERYL AND VINCE PROSOSKI PRO'S PROPERTIES, LLC 3B387 NORTHERN LIGHTS TRAIL CERTIFICATE OF SURVEY FOR:/ hereby certify that this is a tree try! correct representation of a survey of the boundaries of the above described land, aid that this survey was prepared by me or under my direct supervision aid that I am a duty Licensed Professicna! Laid Surveyor under the laws of the State of Minnesota. Dated this 20th day of August, 2014. RICHVILLE, MN 56576 213-753-2343 OWNER OF 6.3± ACRE TRACT CHERYL AND VINCE PROSOSKI(PROPERTYPROPOSING TO REPURCHASED) PAULETTE JIMENEZLEGAL DESCRIPTIONGlerm Howe 20! BECKHORTH LANEProfessional Laid Surveyor EXISTING RESORT PROPERTY:IRMO, SC 2T063Minnesota License No. /7325 PART OF GOVERNMENT U7T 3 K SECTION 25, TOhINSHIP 135, RANGE 40, OTTER TAIL COUNTY, MINNESOTA FIELD BOOKDRAWN BYCONTRACT NO.FOLDERDEAD LAKEPARCEL ID N0.l4000250l3f700l ALS-220/1GEH277-13 277-133H ADDRESS = 35387 NORTHERN LIGHTS TRAIL NDERSON LAND SURVEYING, INC.HD DEED DOC. NO. U06774 FIELD CREWCHECKED BYCRD FILEDWG FILEPROPOSED PURCHASE PROPERTY:JAKTHIS SURVEY IS INTENDED TO PROVIDE ASSISTANCE FOR THE ACQUISITION OF LANDS LYING SOUTHERLY OF NORTHERN LICHTS RESORT PART OF GOVERNMENT LOTS 3 * 10 LIB/GEH277-13277-13BOA-RPROFESSIONAL LAND SURVEYORS & LAND DEVELOPMENT CONSULTANTS SECTION 25, TOHNSHIP 135, RANGE 40, OTTER TAIL CC4JNTY, MINN^OTA DRAWING NUMBERAND TO MEET THE PRESENTATION REQUIREMENTS FOR A PUBLIC HEARING WITH THE OTTER TAIL COUNTY BOARD OF ADJUSTMENTS.DEAD LAKE313 SOUTH MILL STREET. FERGUS FALLS, MN 56537 (218) 739-5268 REVISION:5EC-TWP-RGPARCEL ID NO. 14001^50137011 7750BOA-R3U ADDR^S = NOT YET /ASSIGNED(800) 300-9276 8-20-1425-135-40PERSONAL REPRESENTATIVES DEED DOC. NO. 333CB3 W I \|gLytaiAc53^L==^ EXISTING RESORT IMPERVIOUS AREA CALCULATIONS CABIN I + DECK (242) + STEP5 (16) + CONC (IV = <173 S.F. CABIN 2 (553) + DECK (36) + STEPS (6) = 600 S.F. CABIN 3 (535) + DECK (56) + STEPS (!0) + CONC (27) = 623 S.F. CABIN 4 (527) + DECK (45) + CONC (51) = 623 S.F. CABIN 5 (563) + DECK (171) + STEPS (16) + CONC (13) = 771 S.F. CABIN 6 (566) + DECK (52) = 613 S.F. SCALE IN FEET SCALE:: I inch = 40 FEET CABIN 7 (542) + DECK (lOI) + CONC (40) = 683 S.F.BEARINGS ARE BASED ON OTTER TAIL COUNTY COORDINATE CABIN 3 (4S6) + DECK (64) -h STEPS (6) + CONC (22) = 583 S.F. CABIN <? (46!) + DECK (64) + STEPS (1) = 534 S.F. CABIN 10 (1616) + DECK I (130) + STEPS I (34) + DECK 2 (85) + STEPS 2 (4) + AC (6) = 1875 S.F. HOUSE/GARAGE (2627) + DECK (48^) + STEPS (15) + CONC (686) + LANDSCAPE (13) + ANTENNA (S) + AO (6) = 3845 S.F. BATHHOUSE (20!) + DECK (41) + STEPS (52) = 302 S.F. IH6 ADJUSTTENT jAS DETERMINED BY THE MNDOT CORSA7RS NETHORK. • DENOTES IRON MONUMENT FOUND. O DENOTES IRCM MONUMENT SET MARKED “PLS 13620 t 17825''.FISH CLEANING SHED (lOO) + CCMC (48) = 148 S.F. BAIT SHED (188) + CONC (lO) = l<18 S.F.® DENOTES MAGNETIC RING MITH BRASS PLUG SET MARKED 'PLS 13620 t 17825".SHED 028) + STORAGE SHED (240) + CONC (16) = 384 S.F. GAME ROOM (551) -h CONC (508) = 1067 S.F. MATER FLUSHING STATION (4) + HOLDING TANK MASTE DISPOSAL (4&) + FUEL TANKS ON CONC (53) + PROPANE TANK (25) = 130 S.F. BOAT LANDING (461) + GRAVEL (21222) + LANDSCAPE (!4) + CONC SIDEMALK t STEPS (321) + BOARDMALK (421) + MOOD STEPS (108) 30,571 S.F. DENOTES POMERYLIGHT POLE BY VISIBLE OBSERVATION. DENOTES OVERHEAD- ELECTRIC LINE BY VISIBLE CBSERVATtON. DENOTES MOOD DECK.D 173 + 600 + 628 + 623 + 77! + 618 + 683 + 588 + 534 + 1875 + 3845 + 302 + 148 + 118 + 384 + 1067 + 130 + 30571 = 44,538 AC DENOTES AIR CONDITIONER. 44,538 + EXISTING PARKING {26 SPACES OUTSIDE OF EXISTING GRAVEL X (!0 X 20) = 41,738 STO denotes storage shed. 41,738/307,011 = I6.ZS IMPERVIOUS SURFACE DENOTES TELE COITnUNiCATIONS FED BY VISIBLE CBSERVATlON.TELE OPERATING RESORT BY HATER FRONTAGE - 1375/125 = // UNITS DENOTES MATER FLUSHING STATION.MFS EXISTING RESORT TIER I CALCULATIONS:M O DENOTES MELL BY VISIBLE OBSERVATION. A RCV !2 DENOTES RECREATIONAL CAMPING VEHICLE POMER PEDESTAL.TOTAL AREA IN TIER / = 303,56<^ S.F.-f?CV DENOTES FROEOSEP KBCREATiONAL CMYPiNG vENlCLE. TOTAL AREA EXCLUDING:DENOTES EXISTING CABIN.CABIN II. HETLANDS, BLUFFS, -13,347, -21,350 -----1350---------TEN FOOT CONTOUR INTERVAL FROMSPOT ELEVATIONS AND LIDAR MAPPING.RON OR BELOH ONHL NET AREA = 265,542 S.F. BASE DENSITY OF DHELLING UNITS = 265,542/50,000 = 3.36 MAXIMUM ALLOHABLE DENSITY PER TIER = 3.36 x 1.5 = 5.04 TIER / NUMBER OF UNITS ALLOHED = 5 EXISTING UNITS = 10 CABINS, 5 RVC SITES, I NOME, EXISTING RESORT TIER THO CALCULATIONS ARE NEGLIGIBLE PROPOSED COMBINED PROPERTIES RESORT BY HATER FRONTAGE - 217+1375/125 = 12.7 UNITS PROPOSED RESORT TIER I CALCULATIONS: TOTAL AREA IN TIER / ('303,56^ + 146, <=115 + 13,207) = 463,6<=ll S.F. TOTAL AREA EXCLUDING: I. HETLANDS, BLUFFS, -35, =115, -563, -21,350, -%!66, -2,537, -13,347 ROH OR BELOH ONHL NET AREA = 377,453 S.F. BASE DENSITY OF DHELLING UNITS = 377,453/50,000 = 4.72 MAXIMUM ALLOHABLE DENSITY PER TIER := 4.72 x 1.5 = 7.05 TIER I NUMBER OF UNITS ALLOHED = 7 EXISTING UNITS = !0 CABINS, 5 RVC SITES, I NOME, PROPOSED RESORT TIER 2 CALCULATIONS: TOTAL AREA IN TIER 2 = 120,221 S.F. TOTAL AREA EXCLUDING-- I. HETLANDS, BLUFFS, -IO,<142, -l%030, -6,154 ROH OR BELOH ONHL NET AREA = 64,005 S.F. BASE DENSITY OF DHELLING UNITS = 54,005/160,000 = 0.53 MAXIMUM ALLOHABLE DENSITY PER TIER = 0.53 x 1.5 = 0.7=1 TIER 2 NUMBER OF UNITS ALLOHED = O EXISTING UNITS = O / CHARLES BRASEL\ PARCEL t400a2S0H7(X75 J/ //cn s N,/ I V I / ME5LEY KUBE X PARCEL I40CX7250I170I31 PROPOSED PROPERTY TO BE PURCHASED I BY WATER FRONTAGE - 217/125 =1.7(2 UNITS) TIER 1 CALCULATIONS: TOTAL AREA IN TIER / + 13,207) = 160,122 S.F.J /TOTAL AREA EXCLUDING: I. HETLANDS, BLUFFS, -14,342, -35, =115, -563, -=1,I66, -2,537, = 65,523 ROH OR BELOH ONHL NET AREA = 160,122 - 65,523 = =14,2<^=1 S.F. BASE DENSITY OF DHELLING UNITS = ^4,2=1=1/50,000 = 1.15 MAXIMUM ALLOHABLE DENSITY PER TIER = 1.15 x 1.5 = L77 (2 UNITS) NORTH-SOUTH 1/4 LINETIER / NUMBER OF UNITS ALLOHED = 2 SEC. 25-135-40PROPOSED UNITS IN TIER / = 4 TIER 2 CALCULATIONS: TOTAL AREA IN TIER 2 = lli^, 77=1 S.F. TOTAL AREA EXCLUDING-- I. HETLANDS, BLUFFS, -7772, -25,274 = 33,046 ROH OR BELOH ONHL NET AREA = 116,77=1 - 33,046 = 53,733 S.F. BASE DENSITY OF DHELLING UNITS = 53,733/160,000 = 0.52SHIRLEY RAMBERG MAXIMUM ALLOHABLE DENSITY PER TIER = 0.52 x 1.5 = 0.7=1 O UNIT)PARCEL I4000250I170I2 SOUTH 1/4 CORNER SEC. 25-135-40.TIER 2 NUMBER OF UNITS ALLOHED = / PROPOSED UNITS IN TIER 2 = q OWNER OF NORTHERN LIGHTS RESORT(APPLICANT) CHERYL AND VINCE PR050SKIPRO'S PROPERTIES, LLC 35387 NORTHERN LIGHTS TRAIL CERTIFICATE OF SURVEY FOR: SURVEYOR'S CERTIFICATE RICHVILLE, MN 56576 218-346-6046 I hereby certify that this is a true and correct representation of a survey of the boundaries of the above described land, and that this survey was prepared by me or under my direct supervision and that I em a duly Licensed F+afessional Land Surveyor under the laws of the State of Minnesota. ITated this 21st day of May, 2014. OWNER OF 6.3± ACRE TRACT CHERYL AND VINCE PROSOSKl(PROPERTY PROPOSING TO BE PURCHASED) PAULETTE JIMENEZLEGAL DESCRIPTION 20! BECKNORTH LANE EXISTING RESORT PROPERTY:IRMO, SC 21063PART OF GOVERNMENT LOT 1 h SECTION 2E<, TONN5HIP 135, RANGE 40, OTTER TAIL COUNTY, MINNESOTA DEAD LAKE FIELD BOOKDRAHN BYCONTRACT NO.FOLDER Minnesota License No. i7825 PARCEL ID 110.14000250117001 ALS-220/1GEH277-13277-13111 ADDRESS = 35387 NORTHERN LIGHTS TRAIL NDERSON LAND SURVEYING, INC.ND DEED DOC. NO. H06T74 FIELD CREWCHECKED BYCRD FILEDWG FILEPROPOSED PURCHASE PROPERTY:JAK PART OF GOVERNMENT LOTS 1 t lO LIB/GEH277-13277-I3BOASECTION 25, TONN5HIP 135, RANGE 40, OTTER TAIL COUNT-Y, MINNESOTA DEAD LAKE PROFESSIONAL LAND SURVEYORS & LAND DEVELOPMENT CONSULTANTS DRAWING NUMBER 313 SOUTH MILL STREET, FERGUS FALLS, MN 56537 (218) 739-5268 REVISION:SEC-TWP-RGPARCEL ID NO. I4000250I170U 111 ADDRESS - NCT YET ASSIGNED(800) 300-9276 25-135-40PERSONAL REPRESENTATIVES DEED DOC. NO. 881038 Letters Received for the September 2014 Meeting lU % ri 4 ^ m OTTER TAIL COUNTY LAND & RESOURCE PUBLIC WORKS DIVISION WWW.CO.OTTER-TAIL.MN.USOTTER TRIlgetaTT-aitaiioTa GOVERNMENT SERVICES CENTER 540 WEST FIR AVENUE FERGUS FALLS, MN 56537 218-998-8095 FAX: 218-998-8112 October 15, 2014 Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 RE; Dead Lake Association v. Otter Tail County, Northern Lights Resort, Dead Lake (56-383) Dear Mr. Kuboushek, Per Bill Kalar, my Administrator, I have enclosed copies of the Northern Lights Resort applications and drawings, which you have requested. The original drawings we have on file are color coded, unfortunately we do not have the capabilities to make large colored copies. If you are in need of anything further, or have any questions please feel to contact our office. Respectfully, Michelle Jevne Permit Technician Enc. OTTER TAIL COUNTY IS AN EQUAL OPPORTUNITY EMPLOYER % Bill Kalar Kuboushek, Jason <jasonk@irc-law.com> Tuesday, October 14, 2014 12:02 PM Bill Kalar FW; Dead Lake Association v. Otter Tail County From: Sent: To: Subject: Bill, Can you send me the application, drawings and any other material your office has in the project file on this particular project. I am not asking for the materials which Mr. Stein has already attached to the meeting minutes. JJK From: Wayne Stein fmailto:wstein@co.ottertail.mn.us1 Sent: Tuesday, October 14, 2014 11:59 AM To: Kuboushek, Jason Subject: RE: Dead Lake Association v. Otter Tail County Those are the only items that I received for presentation at the public hearings. The applicant's application and drawing would be a part of the file maintained by Land and Resource. Sincerely, Wayne Stein, County Auditor Government Services Center 510 FirAve W. Fergus Falls, MN 56537 Office Line-218 998-8030 Direct Line-218 998-8041 Fax Line - 218 998-8042 9cT« S, jn From: Kuboushek, Jason fmailto:iasonk@irc-law.com1 Sent: Tuesday, October 14, 2014 11:39 AM To: Wayne Stein; Bill Kalar Subject: RE: Dead Lake Association v. Otter Tail County Thank you Mr. Stein. 1 just wanted to confirm that the attachments to the minutes are all of the documents which are part of the record that was presented to the Board. JJK From: Wayne Stein fmailto:wstein@co.ottertail.mn.us1 Sent: Tuesday, October 14, 2014 9:49 AM To: Kuboushek, Jason; Bill Kalar Subject: RE: Dead Lake Association v. Otter Tail County 1 V October 14, 2014 Dear Mr. Kuboushek, ; I have attached copies of the minutes from the June 12 and September 11 meetings. I am making copies of the recording and hope to have them in the mail to you today. . •>-Sincerely, Wayne Stein, County Auditor Government Services Center SlOFirAveW. Fergus Falls, MN 56537 , Office Line - 218 998-8030 Direct Line - 218 998-8041 Fax Line-218 998-8042 m formumn/ COUOTY • niflOtfOTi “j SI From: Kuboushek, Jason fmailto:iasonk@irc-law.com1 Sent: Monday, October 13, 2014 11:40 AM To: Wayne Stein; Bill Kalar Subject: Dead Lake Association v. Otter Tail County I Mr. Stein, I have been retained by MCIT to represent Otter Tail County in an appeal brought by the Dead Lake Association regarding a variance which was granted to Northern Lights Resort/Pro Properties. I talked to Bill Kalar this morning and he indicate you were the individual which would have the audiotapes from the BOA hearings where this matter was discussed, as well as the documentation, including meeting minutes, which were presented at the hearings. ;;I am requesting a copy of the audio and the documents so that I can begin putting together the Adrhinistrative Recbrd ' on this case. Please feel free to contact me with any questions. Jason J. Kuboushek IVERSON REUVERS CONDON 9321 Ensign Avenue South Bloomington, MN 55438 Direct Dial: 952-548-7206 Facsimile; 952-548-7210 iasonk@irc-law.com ■>: www.irc-law.com ^ r This communication (including attachments) is covered by the Electronic Communications ;Privacy Act, 18 U.S.C. 2510-2521. This communication is confidential and may be legally privileged. If you i:. i;.2 K: « are not the intended recipient, you are hereby notified that any retention, dissemination, distribution or copying of this information is prohibited. If you have received this communication in error, please notify me by telephone immediately and destroy the information. Thank you. ■| f ; H i • ! !; 3 Otter Tail County, Planning Commission Octobers, 2014, Page 4 Beauty Bay LLP, Tom Wold/Herzon - Approved As Revised: A Conditional Use Permit Application (as stated by the Applicant on the Application): Proposed project includes a 2 story year round dwelling with a walkout basement and boulder retaining walls approximately 40 feet in length, 7’ high leveling out to O’. Project also required removal of existing structure on property. Also, to include new septic tank, drainfield and well locations. Excess fill will toe taken by owner and used to fill low spots on property across road (to the south) which is property of the owner’s as well. Cabin project to be completed by Spring/Summer of 2015. Project proposed to begin Fall of 2014. The proposal is located in Haugen’s Knollwood Lot 1, Section 8 of Dunn Township; Pelican Lake (56-786), GD. Chris Hawley (Chris Hawley Architect) represented the Application. Motion: A motion by Wilson, second by Gill to approve the revised plan received by Land & Resource Management on September 25, 2014, provided Land & Resource receives the impervious surface calculations for the building(s) and the total lot area confirming compliance with the Shoreland Management Ordinance: work may be done this fall with appropriate erosion control measures. Voting: All Members in favor. Northern Lights Resort Variance Approval - Appealed by the Dead Lake Association: Bill Kalar informed the Commission that the Dead lake Association has appealed the Variance approval for Northern Lights Resort, Dead Lake (56-383), NE. Adjourn: At 9:40 P.M., Chairman Olson set the Meeting. The next Meeting is scheduled for 6:30 P.M. on November 12, 2014. Respectfully submitted. Marsha Bowman Recording Secretary Case Type; Other Civil DISTRICT COURTSTATE OF MINNESOTA COUNTY OF OTTER TAIL SEVENTH JUDICIAL DISTRICT In the Matter of the Appeal by Phyllis Freeman and the Dead Lake Association, Inc., Court File No. of the September 11, 2014 Decision of the Otter Tail County Board of Adjustment to Grant Variances to Pro’s Properties, LLC d/b/a Northern Lights Resort NOTICE OF APPEAL JURISDICTION 1.Otter Tail County has adopted land use controls under Minnesota Statutes Chapter 394. Otter Tail County has established a Board of Adjustment (“BOA”) pursuant to Minn. Stat. § 394.27. Otter Tail County exercises land use and zoning control in Dead Lake Township. Phyllis Freeman, individually and as president of Dead Lake Association, Inc., is2. a landowner and resident of Dead Lake Township and is a person within the meaning of Minn. Stat. § 394.27, Subd. 9, with standing to appeal the decision of the BOA to the district court in Otter Tail County. STANDARD OF REVIEW Otter Tail County BOA acting under Minn. Stat. §394.27 may issue a variance3. from the requirements of official zoning controls when the property owner establishes that there are “practical difficulties” in complying with the official zoning controls. See: Minn. Stat. § 394.27, Subd. 9. “Practical difficulties,” as used in connection with granting a variance, means that the property owner has met the criteria under Minn. Stat. § 394.27, Subd. 7. See: In re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) for six factors needed to meet the statutorily required “practical difficulties” standard. Economic considerations alone do not constitute ",y[17198-0003/1869706/1]1 “practical difficulties”. See: Minn. Stat. § 394.27, Subd. 7. FACTS Pro’s Properties, LLC d/b/a Northern Lights Resort (“Applicant”) is a registered4. owner of property lying in Dead Lake Township identified as PID# 14000250197001 in Otter Tail County. Applicant operates the Northern Lights Resort on this property (the “Resort”). 5. Applicant wishes to purchase a 6.3 acre tract of land southerly of and adjoining the existing Resort identified as PID# 14000250197011 in Otter Tail County (the “Property”). The Applicant proposes to build dwelling units in the form of seasonal campsites on the Property and install boat slips on the adjacent Dead Lake. Dead Lake is a “Natural Environment” lake under the Otter Tail County6. Shoreland Management Ordinance (the “Ordinance”). Natural Environment lakes are shallow. environmentally firagile, and have strict regulations on use and development. See: Minnesota Rule 6120.3000, Subp. la (A). Pursuant to the Ordinance, the proposed development on Natural Environment7. lakes requires a conditional use permit (“CUP”). See: Shoreland Management Ordinance of Otter Tail County, Section HI, Subp. 2. On May 20, 2014, the Otter Tail County Board of Commissioners (the “Commissioners”) approved a CUP on the condition that Applicant secure necessary variances fi-om the BOA. See: Otter Tail County Board of Commissioners ’ Minutes, 05/20/2014. 8.Pursuant to the Ordinance, the dimensions and size of the Property allows Applicant two (2) dwelling units in the First Tier shoreland, one (1) dwelling unit in the Second Tier shoreland, and two (2) boat slips on a Natural Environment lake. See: Otter Tail County Shoreland Management Ordinance. See: Property Characteristics Worksheet. Bill Kaler, [17198-0003/1869706/1]2 09/10/2014 (the “Worksheet”). 9. Applicant originally appeared before the BOA on June 12,2014, to request a variance for four (4) dwelling units in the First Tier, eleven (11) dwelling units in the Second Tier, and fifteen (15) boat slips. See: Otter Tail County BOA Meeting Minutes, 06/12/2014. 10. Otter Tail County Land and Resources Director, Bill Kaler, explained that pursuant to the Ordinance, Applicant is allowed two (2) dwelling units in the First Tier, one (1) dwelling unit in the Second Tier, and two (2) boat slips on a Natural Environment lake. See: Id. The BOA tabled Applicant’s variance application and directed Mr. Kaler to11. recalculate the allowable density of dwelling units and boat slips on the Property using a commercial development formula instead of the density formula tised by Otter Tail County. See: Id. On September 11, 2014, the BOA considered a revised variance application from12. the Applicant for eleven (11) dwelling units in the Second Tier and twelve (12) boat slips See: Otter Tail County BOA Meeting Minutes, 09/11/2014. Mr. Kaler again explained that pursuant to the Ordinance Applicant is allowed a13. maximum of two (2) dwelling imits in the First Tier, one (1) dwelling unit on the Second Tier, and two (2) boat slips on a Natural Environment lake, however under a commercial development formula not adopted by Otter Tail County Applicant would be allowed five (5) dwelling units in the First Tier, six (6) dwelling units in the Second Tier, and five (5) boat slips. See: Property Characteristics Worksheet. Bill Kaler, 09/10/2014. See: Otter Tail County BOA Meeting Minutes, 09/11/2014. 14. After discussing the economic benefits of resorts in Otter Tail County the BOA made a motion to approve eleven (11) dwelling units in the Second Tier and five (5) boat slips [17198-0003/1869706/1]3 based on the commercial development formula. After further discussion it was suggested that each dwelling unit should have its own boat slip. The original motion was withdrawn and a new motion to approve eleven (11) campsites and eleven (11) boat slips was made. See: Id. A representative of the Dead Lake Association, Inc., asked the BOA to articulate15. “practical difficulties” pursuant to Minn. Stat. § 394.27, Subd. 7. The BOA noted the importance of increasing tourism and protecting resorts in Otter Tail County as “practical difficulties.” The motion carried. See; Id. COUNT I The BOA’S decision was arbitrary and capricious because the BOA failed to consider all factors required by law. 16. An area variance by a county zoning authority is legally permissible only when the applicant shows “practical difficulties” in carrying out the strict letter of any official control. See: In re Stadsvold, 754 N.W.2d at 331; Minn. Stat. § 394.27, Subd. 7: The Minnesota Supreme Court has articulated the following factors for17. consideration when applying the “practical difficulties” standard: (1) How substantial the variation is in relation to the requirement; (2) The effect the variance would have on government services; (3) Whether the variance will affect a substantial change in the character of the neighborhood or be a substantial detriment to neighboring properties; (4) Whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) How the practical difficulty occurred, including whether the landowner created the need for a variance; and (6) Whether in light of all the stated factors, allowing the variance will serve the interest of justice. See: In re Stadsvold, 754 N.W.2d at 331. 18. The BOA made insufficient findings of fact to address these factors. [17198-0003/1869706/1]4 ] 9. In addition to considering these six factors, a county zoning authority must apply the “practical difficulties” standard to the relevant provisions of the Ordinance and “articulate the reasons for its ultimate decision.” See; Id at 332. Pursuant to the Ordinance, the relevant provisions for consideration by the BOA include: (1) whether the variance is in harmony with the general purposes and intent of the Ordinance; (2) whether the applicant established “practical difficulties” in complying with the Ordinance; (3) whether applicant has presented “practical difficulties” beyond economic considerations; (4) whether the variance is needed to secure for the applicant rights that are enjoyed by other landowners in the same area; and (5) whether granting the variance will be contrary to the public interest or damaging to the rights of other persons or property values in the neighborhood. See: Shoreland Management Ordinance of Otter Tail County, Section V, Subp. 6. 20. The BOA articulated irrelevant “practical difficulties” to these provisions of the Ordinance. The boa’s findings of fact on “practical difficulties” consisted of the following; “The variance as approved supports the commercial resort industry and recognizes the important 21. role resorts have both environmentally and economically.” See: Otter Tail County BOA Meeting Minutes, 09/11/2014. These findings are irrelevant and contrary to the statutorily required “practical difficulties” standard which states economic considerations are not “practical difficulties.” See: In re Stadsvold, 754 N.W.2d at 331; Minn. Stat. § 394.27, Subd. 7; and Shoreland Management Ordinance of Otter Tail County, Section V, Subp. 6 (C). [17198-0003/1869706/1]5 COUNT2 The boa’s decision was arbitrary and capricious because the BOA used a commercial development formula to calculate allowable density that is not allowed in Otter Tail County. 22. The BOA directed Mr. Kaler to calculate allowable density on the Property pursuant to a commercial development formula that is not allowed in Otter Tail County. See: Otter Tail County BOA Meeting Minutes, 06/12/2014. See: Property Characteristics Worksheet, Bill Kaler, 09/10/2014. See: Otter Tail County BOA Meeting Minutes, 069/11/2014. The BOA used the commercial development formula as justification to grant Applicant’s variances. See: Id. There are no “practical difficulties” pursuant to statutory law, case law, and the23. Ordinance which justify granting the Applicant variances for eleven (11) dwelling units and eleven (11) boat slips on a Natural Environment lake. 24. As a matter of law, these variances should be vacated and denied. WHEREFORE, the Appellants request relief as follows: For an Order Vacating Variances for the 11 dwelling units and 11 boat slips1. granted by the Otter Tail County Board of Adjustment on September 11,2014, on the basis that the BOA acted arbitrarily and capriciously, that neither the Applicant nor the BOA established “practical difficulties” as required by law under Minn. Stat. § 394.27, Subd. 7, that the BOA used a commercial development formula to calculate allowable density not approved by Otter Tail County, and that the BOA failed to make findings of fact required under the Shoreland Management Ordinance of Otter Tail County. For the recovery of the Appellants’ costs and disbursements, all as provided by2. law. [17198-0003/1869706/1]6 3.For such other and further relief as the court deems just and equitable. Dated: October 2014 RINKE NOONAN --- / / 0391774 By:-1 ^y^atthew J. tc^en, # Attorney for Appellants 1015 West St. Germain Street, #300 P.O. Box 1497 St. Cloud, IvfN 56302-1497 (320)251-6700 Our File No. 17198-0003 ACKNOWLEDGMENT The party above, through counsel, hereby acknowledges that costs, disbursements, and reasonable attorney and witness fees may be awarded to the opposing party pursuant to Minn. Stat.§ 549.211, Subd. 2. „ y' -__ V Matthew J. Loveti,' #03^ 774 [17198-0003/1869706/1]7 otter Tail Lakes Country Tourism Association WWW.OTTERTAU.LAKESCOUnTRV.COM September 10th, 2014 Otter Tail County Board of Adjustment 515 WFir Ave Fergus Falls, MN 56537 Board of Adjustment, Otter Tail Lakes Country Tourism Association would like to thank you for your service and efforts aimed at ensuring a viable environment for the residents and visitors of Otter Tail County. Our organization has been working hard to promote tourism in this region since 1976. In a recent study of area visitors. Otter Tail County’s unpolluted, natural environment was the most highly ranked characteristic of our region. Thus, the tourism industry recognizes the importance of preserving and protecting our natural resources. However, we also want to remind you of the economic benefits of tourism in Otter Tail County. The leisure and hospitality industry accounts for 17% of Minnesota’s state sales tax revenues. According to the most recent economic impact study prepared for Explore MN Tourism and the University of Minnesota Tourism Center, travelers spent nearly $ 184,980,240 in Otter Tail County. The total economic benefit of this travel spending translates to: ✓4,537 full-time jobs $85,453,956 in resident income $23,126,384 in state revenue $6,854,864 in local revenue Resorts have been fundamental to the tourism industry in Otter Tail County. Over the years, resorts have adapted to changing market demands, vacation styles and traveler trends to ensure their profitability. Unfortunately, despite demonstrating impressive flexibility and adaptability. Otter Tail County’s resorts are disappearing. In many cases, the increasing value of lakeshore property has exceeded the value of the resort business. Coupled with increasing operating costs from higher insurance, taxes, etc. and increasingly prohibitive regulations, resort owners face real issues of sustainability. Since 1985, Otter Tail County has experienced a 44% decrease in the number resorts.* (*Research shows 126 resorts in Otter Tail County in 1985. In 2012 there were 70) • 1985-2000 data on the number of resorts in Otter Tail County can be found at: http://www.exploreminnesota.com/industry-minnesota/research-reports/researchdetails/download.aspx?id=1896 • The 2012 Data on the number of resorts in Otter Tail county can be found at: http://www.exploreminneso ta.com/industry-minneso ta/research-reports/researchdetails/download.aspx?id=831 mm As resorts across the County have converted to private associations or residential use, the accrued economic benefits for our region and state have been measurably diminished. However, the loss of resorts in Otter Tail County not only has economic implications, but also societal. Resorts offer an affordable means for Minnesota and Otter Tail County families to avail themselves of their tax-supported natural resources. Prohibitively high lakeshore costs price most Minnesotan’s out of the lake cabin market, reducing access to the publicly-owned resources their tax dollars support and maintain. From a public policy standpoint, the closing of resorts translates directly to the loss of lake access for thousands of hard working Minnesotan’s. Based on these facts, the Otter Tail Lakes Country Tourism Board of Directors supports continued tourism development as shown in the expansion proposal by Northern Lights Resort. We applaud their commitment to preserving the resort experience for generations to come. Furthermore, bearing in mind that on average, over two Otter Tail County resorts close permanently each year, we are grateful for their vision and desire to grow. Resorts are vital to our region’s economy and culture. We encourage the Otter Tail County Board of Adjustment to consider these facts when evaluating the variance request by Pro’s Properties, LLC (DBA Northern Lights Resort). While our current Land and Resource Regulations may not distinguish between resorts and other cluster developments, the unique characteristics and attributes of Ma and Pa resorts are unmistakable. As such, the resort industry relies on the expertise and common sense of our Board of Adjustment to make the appropriate distinction. In closing, we believe that Otter Tail County can grow our tourism industry and simultaneously enhance the quality of our natural resources. Thank you for the important role that you play in these efforts. If you need more information or have any questions regarding Otter Tail Lakes Country Tourism Association, please don't hesitate to contact us. We can be reached at (800) 423-4571, info@ottertailcountry.com, or will meet with you in person. Sincerely, Board of Directors Otter Tail Lakes Country Tourism Association PO. Box 117 I Ottertaii, MN 56571 | p: (800) 423-4571 ( e: info@ottertailcountry.com Wayne Stein Mike or Cheryl Harris < mcharris4455@hotmail.com> Monday, August 25, 2014 3:44 PM Wayne Stein Letter to the Board of Adjustment for September meeting Letter to Board of Adjustment NLR.pdf From: Sent: To: Subject: Attachments: Wayne, Attached is a letter to the Board of Adjustment for their meeting in September on behalf of Pros Properties, LLC (aka Northern Lights Resort). I signed the attached letter so that it may be read at the meeting. I would appreciate it if you would print it out to be part of the permanent record. Please let me know that you received this email and attachment and were able to print it out. Thank you. Cheryl Harris 38019 Dead Lake Road Richville, MN 56576 218-495-2717 C scA?;::!D1 August 25, 2014 To: Board of Adjustment Members RE: Variance Request for Pros Properties, LLC (aka Northern Lights Resort) I am a former owner of Northern Lights Resort and sold it In March 2012. Neither my husband nor I have any property, financial or emotional interest or involvement with this resort any longer. I have heard so many negatives about why this project should not be approved and they are all extremely biased. I would like to see this project go through and see the resort prosper for the sake of not only the Prososki's, but the local Township and the County. One of the main objections I am hearing is that these seasonal campers would be on a "backlot". That is not true. This piece of property has lakeshore just like any other lakeshore property. Just because the sites would be set behind the cabins and current campsites, this will all be resort property regardless of placement. Another objection involves boat traffic and is a major objection by the Dead Lake Association and some of the neighbors of the resort. While anyone who feigns attempts to object for this reason thinks it is valid, I would like to Inform them that this is not their private lake and it belongs to the State of Minnesota. The Dead Lake Association can no more control who does or does not put their boat on Dead Lake than the man in the moon. Anyone with a boat has full access to the lake by virtue of the public accesses. If everyone with a boat wanted to put their boat on the lake, they would have every right to do so. The Lake Association has NO CONTROL over that, nor should they. The Dead Lake Association appears to be a radical group who represent a minority group of property owners on Dead Lake. I live in the center area of the lake between the east bay and Bones' Island. There are so many nice days that I rarely see three or four boats go by, much less stay and fish. I do not understand why everyone is so concerned about 12 more boats sporadically being on the lake. This lake is almost 8,000 acres for goodness sake. I think we should be thankful that we are not Lake Minnetonka where they have almost 8 boats to an acre. Furthermore, some of those objecting about boat traffic aren't even here on the lake most of the time. I really don't see why they should even have any input. I can see where it would be different if this were their permanent residence. I will now address a comment previously made that the resort should not be able to "surround" a private lake property owner. That private property owner and the adjacent neighbor to the property in question both had the option, like anyone else, to purchase this tract of land and chose not to do so. Why then should the Prososki's not be able to purchase it if they so choose? The private property owner has been landlocked for over 50 years, has an easement for ingress/egress, and should not have any say about who purchases land adjacent to them that they chose not to buy. I know from having lived at the resort for 17+ years that some of my neighbors then had no respect for other people's property. The absent owner's property became the shortcut and playground for my former neighbors and their four-wheel drive toys. I witnessed this on many occasions. While I know the Board of Adjustment is well aware of the reasons they are in existence, I would like to remind each Board member that Ottertail County is one of the few counties in the State of Minnesota that does not have a commercial section in their Shoreland Ordinance. Currently, this project is being judged on residential values and is a commercial operation, hence, the reason for the need for variances. The whole purpose of the Board of Adjustment is to "adjust" from the Ordinance where the need arises. In this case, I would hope the Board realizes the need to adjust from the residential part of the Ordinance to the lack of a commercial section of the County Ordinance which is in the State of Minnesota Ordinance allowing a business to expand and continue doing business. This County has lost far too many resorts in the past 20 years and cannot afford to lose any more. R^pectfully, 8019 Dead Lake Road, Richville, MN 56576 218-495-2717Cheryl Han C srAf!::ED » \ueust 2t3, 2014 Otter Taii Board of AdjustmentTO; Mike Weismiller RECEIVEDFROM; 35282 Northern Lights Drive, Dead Lake AUG 2 8 2014 OTTER iMiL FERGUS Variance Hearing for Northern Lights ResortRE; I have been opposed to this high density project from the beginning. It is not consistent with tnr ordinances of a classified environmental lake in Otter taii Countv. In addition, it is not in the best interests of the east bay lakeshore property owners and the precedent of this proposed development is verv bad for Dead Lake. If this backlot development is approved, at the very least, I request that Northern Lights Resort install a 8' privacy fence and a tree line on the east side of my property in an attempt to eliminate sight and noise pollution. I would prefer that my property be purchased by the Resort at a fair market price as the quality of life on the Lake would be greatly diminished. Sincerely. ichael Weismiller I Received! SEi^ Od iou \ 0-T.y<)^y\JlAW ^ ‘ OL-X^-E^hTT^ : ep ^5*>/7"/ />^-I / 3 /Id ^ tEKs^ SCANNED1 A-' ■^7 ^ fj>s 7 At ptzd C^ (f 353^^ (I'fO ^i{)l^ j3 ^^y i^-ey ^W )4 A Cff|>!7"’] received SEi^Ob 2014 PTJVR 'iail C^-X^ &D ' /I ^ / r^ ~A '/JL<H!'f^ P^<xyp^yLy ^^2-oZ.c,-»v ch^tAjCiUyi^t^ ■ :( c:x./l—e_/-^C<?1 Cje. 7/ I ^ - C’*-^ i. (jLJi^---'^'~fxJ ij^cex^I <=3 ^/7I"/yi’ ^/ / 3 ^ ^crAMMFH CLJ^jCUX'^ C/ 6^i)'^y>‘i fi'to ^iiii^ /^ Q'f/k '3 rjs 7 J5 ?^Jr- /2eX /4^C ^A Wayne Stein Jessica <johnsenmalcolm@yahoo.com> Wednesday, September 10, 2014 1:07 PM Wayne Stein Board of Adjustment Letter for Northern Lights Resort Variance Request From: Sent: To: Subject: My name is Derene Johnsen. I am a lifetime resident of Dead Lake Township. I understand that Vince and Cheryl Prososki of Northern Lights Resort are in the process of purchasing property adjacent to their resort for the purpose of expanding their business with 12 seasonal campsites. Good for them! Small expansions like this should be very welcome in Otter Tail County. According to the County's own tourism website, they boast of having some of the best run resorts. Instead of losing more shoreline to wealthy, private landowners, I would think Otter Tail County would wish to provide more access to its lakes for the family vacationers they claim to want. The Prososki's should not be penalized for wanting to expand their business. They saw an opportunity to better their resort and livelihood just like we all would like to do. These 12 sites would be controlled and managed by the resort owners and the guests have to abide by the same rules like any other guest, which is better than 12 different owners. The Prososki's do not have full time jobs off of the resort. The resort is their job an not something they would take lightly and jeopardize by not tending to business. What they are asking for is reasonable and should be approved by the Board of Adjustment. Derene Johnsen 37461 Dead Lake Road Richville, MN 56576 218-495-2851 SCANNFD1 Wayne Stein Jessica <johnsenmalcolm@yahoo.com> Thursday, September 11, 2014 12:30 PM Wayne Stein Board of Adjustment Letter for Northern Lights Resort Variance Request From: Sent: To: Subject: --------Original Message--------- Subject: Board of Adjustment Letter for Northern Lights Resort Variance Request From: Mike or Cheryl Harris Sent: 11:59AM, Wednesday, September 10, 2014 To: Derene Johnsen CC: My name is Derene Johnsen. I am a lifetime resident of Dead Lake Township. I understand that Vince and Cheryl Prososki of Northern Lights Resort are in the process of purchasing property adjacent to their resort for the purpose of expanding their business with 12 seasonal campsites. Good for them! Small expansions like this should be very welcome In Otter Tail County. According to the County's own tourism website, they boast of having some of the best run resorts. Instead of losing more shoreline to wealthy, private landowners, I would think Otter Tail County would wish to provide more access to its lakes for the family vacationers they claim to want. The Prososki's should not be penalized for wanting to expand their business. They saw an opportunity to better their resort and livelihood just like we all would like to do. These 12 sites would be controlled and managed by the resort owners and the guests have to abide by the same rules like any other guest, which is better than 12 different owners. i«Muurn 1 The Prososki's do not have full time jobs off of the resort. The resort is their job an not something they would take lightly or jeopardize by not tending to business. What they are asking for is reasonable and should be approved by the Board of Adjustment. Derene Johnsen 37461 Dead Lake Road Richville, MN 56576 218-495-8251 SCAiO2 •* Wayne Stein Otter Tail Country <info@ottertailcountry.com> Wednesday, September 10, 2014 8:57 PM Wayne Stein Northern Lights Resort - Board of Adjustment Board of Adjustment.pdf From: Sent: To: Subject: Attachments: Mr. Stein... Attached is a letter for the Board of Adjustment in regard to the variance proposal by Northern Lights Resort. Thank you for adding it to the record. Nick Leonard Otter Tail Country Tourism Association PO Box 117 Ottertail, MN 56571 800-423-4571 (Toll Free) www.OtterTailCountrv.com 1 Rinke NoonanI j attorneys at law Direct Dial: 320-656-3510 Mloven@RinkeNoonan.comSeptember 8, 2014 received SlP 11 2014Otter Tail County Board of Adjustment (BOA) 510 Fir Avenue West Fergus Falls, MN 56537 OTTER 1 Ail ow-.^JlJlI0R FERGUS FALLS, MN Re: Application for Variance - Pro Properties, LLC d/b/a Northern Lights Resort Our File No. 17198-0003 Dear Board Members: Our firm represents the Dead Lake Association, Inc. (the “Association”) which consists of numerous property owners on Dead Lake in Otter Tail County, Minnesota. Our client is opposed to the variance application for additional campsites and boat slips on Dead Lake submitted by Pro’s Properties, LLC d/b/a Northern Lights Resort (the “Applicant”). The purpose of this letter is to outline the concerns of the Association and highlight required variance considerations in the Shoreland Management Ordinance of Otter Tail County (the “Ordinance”). We think it is quite clear that the requested variances are unlawful. The request seeks approval of the very kind of development that the Ordinance is designed to prevent. Variances exist to deal with exceptional circumstances. The Applicant is simply asking for you to excuse them from obeying the law. I. Concerns of the Association Applicant is requesting variances for ten campsites in a Tier 2 area that allows for only two campsites and twelve boat slips in a Tier 1 area that allows for only two boat slips. This is not a minor request, this is a request for five times the allowable number of campsites and boat slips in Tier 1 and Tier 2 areas. Furthermore, Dead Lake is classified as Natural Environmental. Pursuant to the Minnesota Shoreland Management Program, Natural Environmental is the strictest of all lake classifications. The County is aware of Dead Lake’s classification and has experience with past requests to deviate from Natural Environmental restrictions. Such lakes are generally shallow and highly sensitive to environmental impacts. Due to these circumstances, Natural Environmental lakes are vulnerable to development and require tighter restraints on density and use to maintain health and viability. Overuse and development can be catastrophic. Because of Suite 300 US Bank Plaza 101 5 W St. Germain St. PO. Box 1497 St. Cloud, MN 56302 320,251.6700 (1855014] Lener Otter Tail BOA docx 9/8/2014 3:29 PM www.rinkenoonan.com Otter Tail County Board of Adjustment (BOA) September 8, 2014 Page 2 this, Natural Environmental classifications require strict regulations on lot sizes, setbacks, development, and uses. Finally, the Association fears the message the BOA would send by granting Applicant’s variances. The Association views itself as the steward of Dead Lake. The health of Dead Lake is its first priority. With that said, there are likely other property owners on Dead Lake who are watching this variance application closely with hopes of expanding and increasing density on Tier 1 and Tier 2 areas of their property. Such precedent would be a nightmare scenario for the Association, as well as the BOA, who will put itself in the unfavorable position of having to answer over and over again, “If they can do it, why can’t I?” II. Variance Standards in Otter Tail County As you know, all variances hinge on identifying “practical difficulties’’ with a subject property. See Ordinance Sec. V (6). Practical difficulties are unique or exceptional circumstances on a property that make compliance with zoning rules and regulations unreasonable. In this case. Applicant has not demonstrated anything unique about the property in question. The only motive presented by the Applicant is to increase the economic potential of its resort. The Ordinance explicitly states that economic considerations do not constitute practical difficulties. See Ordinance Sec. V (6) (C). Without something beyond economic considerations, the BOA has no basis on which to grant the variances. If the BOA grants the variances, it is effectively rezonlng Dead Lake for increased developed and all other property owners interested in increasing density on their respective properties will have precedent to rely upon. Also, the original density calculations performed by Bill Kaler, the Administrator of the Otter Tail County Land and Resource Department, must be used in consideration of the variances. Some BOA members requested Mr. Kaler perform density calculations using a commercial development methodology used in other counties to calculate density. Otter Tail County has not adopted the commercial development methodology for density calculations and therefore the use of such methodology is irrelevant. In the past. Otter Tail County considered the adoption of the commercial methodology and made the affirmative decision not to adopt it. Therefore, the current residential methodology used by Otter Tail to calculate density is the only methodology the BOA should consider in determining the extent and onerousness of a variance request. If the BOA would like to use a different methodology to calculate density, it should use the legislative process to amend the regulations and codes of Otter Tail County to reflect that desire. What the BOA should not do is make a variance decision based on rejected methodology. Such actions would circumvent the existing process of the County and result in questionable results. Finally, the BOA must give Dead Lake the protection its classification requires. The BOA cannot justify circumventing the rules and regulations of the Natural Environmental classification solely for economic considerations of a property owner. Dead Lake is classified as Natural Environmental for a reason, and those reasons cannot be dismissed. [17198-0003/1855014/1] SCANh'D • ^ Otter Tail County Board of Adjustment (BOA) September 8, 2014 Page 3 III. Conclusion In conclusion, the Association strongly encourages you to reject the variances requested by the Applicant. The Association does not have an issue with the Applicant or Applicant’s resort. The Association is not opposed to boo.sting tourism or expanding business in Otter Tail County. This is about responsible development and rule enforcement. No one is telling the Applicant it cannot operate a lakefront resort on Dead Lake, the Association is merely pointing out that Applicant must respect the limits placed on Natural Environmental lakes. This rule applies to every property owner and resort on Dead Lake. The Applicant is not being singled out or treated differently, it is simply asking for too much on environmentally fragile property without an appropriate justification. If the Applicant wishes to operate a larger resort there are many lakes in Otter Tail County that can accommodate that desire. Dead Lake is classified as Natural Environmental and, therefore, cannot. I hope the contents of this letter are informative. We look forward to seeing you at the public hearing on September 11, 2014. Feel free to contact me with any questions or concerns. Sincerely, ■ ^ r Matthew J. Cbve'h- MJL/mjr Otter Tail County Attorney - David Hauser Otter Tail County Auditor - Wayne Stein Pro’s Properties, LLC d/b/a Northern Lights Resort Dead Lake Association Inc. cc: [17198-0003/1855014/1] . j ft Rinke Noonan RECEJVED attorneys at law SEP 11 2014 01 TER I FERGLI'' iUR Direct Dial: 320-656-3510 Mloven@RinkeNoonan.comSeptember 8, 2014 FOR your/nformatjo^, Otter Tail County Board of Adjustment (BOA) 510 Fir Avenue West Fergus Falls, MN 56537 Re: Application for Variance - Pro Properties, LLC d/b/a Northern Lights Resort Our File No. 17198-0003 Dear Board Members; Our firm represents the Dead Lake Association, Inc. (the “Association”) which consists of numerous property owners on Dead Lake in Otter Tail County, Minnesota. Our client is opposed to the variance application for additional campsites and boat slips on Dead Lake submitted by Pro’s Properties, LLC d/b/a Northern Lights Resort (the “Applicant”). The purpose of this letter is to outline the concerns of the Association and highlight required variance considerations in the Shoreland Management Ordinance of Otter Tail County (the “Ordinance”). We think it is quite clear that the requested variances are unlawful. The request seeks approval of the very kind of development that the Ordinance is designed to prevent. Variances exist to deal with exceptional circumstances. The Applicant is simply asking for you to excuse them from obeying the law. I. Concerns of the Association Applicant is requesting variances for ten campsites in a Tier 2 area that allows for only two campsites and twelve boat slips in a Tier 1 area that allows for only two boat slips. This is not a minor request, this is a request for five times the allowable number of campsites and boat slips in Tier 1 and Tier 2 areas. Furthermore, Dead Lake is classified as Natural Environmental. Pursuant to the Minnesota Shoreland Management Program, Natural Environmental is the strictest of all lake classifications. The County is aware of Dead Lake’s classification and has experience with past requests to deviate from Natural Environmental restrictions. Such lakes are generally shallow and highly sensitive to environmental impacts. Due to these circumstances. Natural Environmental lakes are vulnerable to development and require tighter restraints on density and use to maintain health and viability. Overuse and development can be catastrophic. Because of Suite 300 US Bank Plaza 101 5 W St. Germain St. RO. Box 1497 St. Cioud, MN 56302 320.251.6700 [1855014] Lttter Otter Tail BOA.docx 9/8/2014 3:29 PM % I' www.rinkenoonan.com Otter Tail County Board of Adjustment (BOA) September 8, 2014 Page 2 this, Natural Environmental classifications require strict regulations on lot sizes, setbacks, development, and uses. Finally, the Association fears the message the BOA would send by granting Applicant’s variances. The Association views itself as the steward of Dead Lake. The health of Dead Lake is its first priority. With that said, there are likely other property owners on Dead Lake who are watching this variance application closely with hopes of expanding and increasing density on Tier 1 and Tier 2 areas of their property. Such precedent would be a nightmare scenario for the Association, as well as the BOA, who will put itself in the unfavorable position of having to answer over and over again, “If they can do it, why can’t I?” II. Variance Standards in Otter Tail County As you know, all variances hinge on identifying “practical difficulties” with a subject property. See Ordinance Sec. V (6). Practical difficulties are unique or exceptional circumstances on a property that make compliance with zoning rules and regulations unreasonable. In this case. Applicant has not demonstrated anything unique about the property in question. The only motive presented by the Applicant is to increase the economic potential of its resort. The Ordinance explicitly states that economic considerations do not constitute practical difficulties. See Ordinance Sec. V (6) (C). Without something beyond economic considerations, the BOA has no basis on which to grant the variances. If the BOA grants the variances, it is effectively rezoning Dead Lake for increased developed and all other property owners interested in increasing density on their respective properties will have precedent to rely upon. Also, the original density calculations performed by Bill Kaler, the Administrator of the Otter Tail County Land and Resource Department, must be used in consideration of the variances. Some BOA members requested Mr. Kaler perform density calculations using a commercial development methodology used in other counties to calculate density. Otter Tail County has not adopted the commercial development methodology for density calculations and therefore the use of such methodology is irrelevant. In the past. Otter Tail County considered the adoption of the commercial methodology and made the affirmative decision not to adopt it. Therefore, the current residential methodology used by Otter Tail to calculate density is the only methodology the BOA should consider in determining the extent and onerousness of a variance request. If the BOA would like to use a different methodology to calculate density, it should use the legislative process to amend the regulations and codes of Otter Tail County to reflect that desire. What the BOA should not do is make a variance decision based on rejected methodology. Such actions would circumvent the existing process of the County and result in questionable results. Finally, the BOA must give Dead Lake the protection its classification requires. The BOA cannot justify circumventing the rules and regulations of the Natural Environmental classification solely for economic considerations of a property owner. Dead Lake is classified as Natural Environmental for a reason, and those reasons cannot be dismissed. [17198-0003/1855014/1] SCAiiEO Otter Tail County Board of Adjustment (BOA) September 8, 2014 Page 3 III. Conclusion In conclusion, the Association strongly encourages you to reject the variances requested by the Applicant. The Association does not have an issue with the Applicant or Applicant’s resort. The Association is not opposed to boosting tourism or expanding business in Otter Tail County. This is about responsible development and rule enforcement. No one is telling the Applicant it cannot operate a lakefront resort on Dead Lake, the Association is merely pointing out that Applicant must respect the limits placed on Natural Environmental lakes. This rule applies to every property owner and resort on Dead Lake. The Applicant is not being singled out or treated differently, it is simply asking for too much on environmentally fragile property without an appropriate justification. If the Applicant wishes to operate a larger resort there are many lakes in Otter Tail County that can accommodate that desire. Dead Lake is classified as Natural Environmental and, therefore, cannot. I hope the contents of this letter are informative. We look forward to seeing you at the public hearing on September 11,2014. Feel free to contact me with any questions or concerns. Sincerely, Matthew J. LbvS^ MJL/mjr Otter Tail County Attorney - David Hauser Otter Tail County Auditor - Wayne Stein Pro’s Properties, LLC d/b/a Northern Lights Resort Dead Lake Association Inc. cc: [17198-0003/1855014/1] Wayne Stein Mike or Cheryl Harris <mcharris4455@hotmail.com> Thursday, September 11, 2014 11:04 AM Wayne Stein Northern Lights Resort 2nd approach approval Northern Lights Resort 2nd approach approval.pdf From: Sent: To: Subject: Attachments: Wayne, Attached is a letter from the Dead Lake Township Board regarding Northern Lights Resort requesting a second approach for the potential development and the Board's encouragement of approval by the County of the development. Would you please include this letter for the meeting tonight? Thank you, Cheryl Harris, Clerk Dead Lake Township SCi^iED1 fDead £aSe ^auut^fUp ^aa:54 SUchu££e, MM 56576 September 11,2014 To Whom It May Concern; At the Dead Lake Township Board meeting held on September 7, 2014, the Supervisors approved an additional approach for Northern Lights Resort off of Northern Lights Drive to access the potential development of seasonal campsites along the road. The Board would like to reaffirm their encouragement of this development for Northern Lights Resort. It will benefit the County, the Township of Dead Lake and the community it’s located within. The Board would encourage approval of this development by the County. Sincerely, Dead Lake Township Board June 30, 2014 Members of the Board of AdjustmentsTo: From: Neighbors and Adjacent Landowners to Northern Lights Resort, Dead Lake Township, Dead Lake RE: Variance Request from Northern Lights Resort We, the neighbors and adjacent landowners to Northern Lights Resort have been apprised of the variance being applied for and ail items described on the variance request. This letter will serve, as shown by the signatures below, our cooperative and full support for all items included on the variance request. We acknowledge that Vince and Cheryl Prososki have made strides to improve the quality of the resort and quality of water with preventive run off methods and replacing hill to natural plants and other measures. We feel the use of the existing roads and trails in the new property will be advantage so not have to build new ones. We appreciate the conservation methods of using existing trails and the centralized dock system and others which will improve the lake and land usage. We feel this project will be a good use of the property. f V.* V y ‘ (JCy) Q^U2^A'-. ^ tfiz■ fPecuC Lak^ i^sociation “ Inc., ^o?cl27, ^fiviOe, M0i56576 ’•'t r,r 'f '•V :>n; -V .'r. September 10,2014To; Otter Tail County Board of Adjustment Re: Revised variance request for Pro's Properties The Dead Lake Board continues to have several concerns about the revised variance request for Pro's Properties. The primary function of the Dead Lake Association is to promote and protect the ecological well-being of the lake. Because we feel so strongly these requests and the resulting precedents that may be set could be detrimental for Dead Lake, we have solicited an opinion from a respected environmental law firm. You therefore have the opinion of Matthew Loven from the Rinke-Noonan firm. We believe he has clearly outlined the issues we feel are so important. First, Dead Lake is a Natural Environment Lake, it was so named in the Minnesota Shoreland Management Program because of its very shallow nature. Being thus classified, it is more sensitive to the environmental changes that affect it. It requires more protection than a recreational or general environment lake in the County. You, the Board of Adjustment, must evaluate this variance request in accordance with the OTC Shoreland Management Act and the guidelines established to grant variances. How will this request affect Dead Lake in both the near and long term? We understand, the current plan is for a development of 12 seasonal campsites in tier 2 land adjacent to the current resort. As per Mr. Kalar's calculations presented at the June meeting, 2 units are allowed in the tier 2 land under the OTC County Ordinance. So the proposal is for a variance of 10 units. Tlie total number planned is several times what the ordinance allows! This density is far outside the parameters of what is allowable. The Dead Lake Board simply cannot accept that number. If we were to ignore the very guidelines set up in the Otter Tail County Ordinance to protect us, we would not be doing our job.V'/v y. We also feel the criteria established does not support the request that these variances be granted. Variances may be granted when there is a "practical difficulty". The current request seems to be purely an economic decision and does not rise to the criteria establisiMd to grant a variance. We refer you to our attorney's discussion on variances. (DecficatecCto Clem Water OTC Soil and Water District (SWCD) and RMB laboratories in Detroit Lakes does analysis and assessments of OTC lakes. At a recent meeting Moriya Rufer, from RMB labs, stated that as the housing market improves there will be more pressure on lakes for second tier development which "isn't great for lakes". Once a second tier is developed the drainage in the lakeshed changes and more runoff reaches the lake. With many large property owners on Dead Lake, we feel we must be vigilant in monitoring tier development and ensure such development is environmentally sound. And lastly, the precedent you set is important. With over 36 miles of shoreline and only about 1/3 of it developed, any decision you make that has the effect of increasing density over what the Ordinance allows, sets Dead Lake up for disaster. We are acutely aware of the fragile nature of our lake. We have for many years monitored water quality at 4 sites on the lake and those results point out to us how careful we on the lake must be to preserve our water quality. We strongly encourage you, the OTC Board of Adjustment, to heed these factors in considering this and future requests. We have stated in the past that we are not against development, but we support development that is ecologically sound within the parameters of the OTC Shoreland Ordinance as it applies to lakefront properties. We also do not have an issue with Northern Lights Resort. We just feel any expansion needs to be done within the requirements of the Ordinance. In conclusion, in the opinion of the Dead Lake Association Board the density of this development is unacceptable and we believe the criteria of "practical difficulty" for granting variances has not been met. We therefore respectfully ask that these variances not be granted. Signed: Dead Lake Association Board Phyllis Freeman, President Revised for September 11 Meeting 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.usOTTfRTIIIt Appiicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern; Pro’s Properties LLC 35387 Northern Lights Trail Richville, MN 56576 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, September 11, 2014 at 7:30 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 Government Lot 9, Property Address - 35387 Northern Lights TrI Section 25, Township 135, Range 40 - Township Name - Dead Lake No. 56-383, Lake Name - Dead, Class - NE The variance requested is the following: Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort. We would like to eventually place 12 seasonal campsites with 12 boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a conditional use permit recommendation for approval at the May 14, 2014 Planning Commission meeting and final conditional use permit approval from the Otter Tail County Commissioners at their May 20’^ 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustment to grant the following: We are requesting a variance from the 30 foot bluff setback (the closet point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to 5 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original dedicated public road corridor laid out in the plat of DeSchane Beach. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 10 of the 12 boat slips. 1. 2. 3. We would also like to note the total impervious surface for this tract of land will be less than 19% We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. Wt^ne Stein Board of Adjustment Secretary Date; August 22, 2014 SCANnEO ^^CEIVED resource Notice of otter Tail County Government Services Center 510 FirAve W Fergus Faiis, WIN 56537 Phone - (218) 998-8030/998-8041 Email -wstein@co.ottertail.mn.us Web Address -www.co.otter-tail.mn.us Applicant and/or applicant’s representative must be present at the scheduled hearing. To Whom It May Concern; Pro’s Properties LLC 35387 Northern Lights Trail Richville, MN 56576 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 T h ursd ay ,-J u n e ^57^14-at-TiSO-p.frhy 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 Government Lot 9, Property Address - 35387 Northern Lights Trl Section 25, Township 135, Range 40 - Township Name - Dead Lake No. 56-383, Lake Name - Dead, Class - NE The variance requested is the following:\7-i-i-Resort is considering purchasing a 6.3 acre tract southeriy of and adjoining the existing resort. We would like to eventually place ^ seasonal ■pf boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a conditional use Northern Lights campsites with permit recommendation for approval at the May 14, 2014 Planning Commission meeting and final conditional use permit approval from the Otter Tail County Commissioners at their May 20"', 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustment to grant the following: S We are requesting a variance from the 30 foot bluff setback (the closet point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to\ of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original dedicated public road corridor laid out in the plat of DeSchane Beach. 1. -----------tho bluff). There will be fio-pod, RV er structures within the 30 foot bluff setback:' ■ -----We ofo-roquooting a vorionoo from tho 50 feet buffoe^the-etoeet point of tho cxioting troll iico 6 feet from tho proporty tieo) for those portions of thc-exioting --------walking trait lying within tho 60 foot buffor along tho northwostorly part of tho 6.3 ocro traet-whioh provide walking oooooo to tho lake. This will climinoto— 4----hoving to construct a now walking tfaii. ■•■4^----Wo are fcquooting a vflftefKX) frot»-tho Tiof 1 donoity ooloulation aoroee tho 6.3 aero traet-fof 2 of tho <1 oooconal campcitoe;—t. jf. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 3. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract forNs of the >6 boat slips. \o 12. We would also like to note the total impervious surface for this tract of land will be less than 19% We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. Date: May 23, 2014 H^ayne Stein Board of Adjustment Secretary V August 14, 2014 Page # 5 Bill Kalar, Land and Resource Director, clarified the requested variances, the roles of the Planning Commission, the County Board of Commissioners, and the Board of Adjustment. Mr. Kalar also addressed density (sites) and boat slip calculations and provided the board members a detailed worksheet as to how the calculations were made, the numbers (sites and boat slips) as authorized by the ordinance/rules and the numbers (sites and boat slips) being requested. A copy of Mr. Kalar’s worksheet is on file, available to the public and has been incorporated as an official part of the minutes. Each member of the Board of Adjustment had an opportunity to ask questions of the applicants and to express their views. After discussion and consideration, Thomas Lee made a motion, second by David Wass and carried, with Michael Harris abstaining (Mr. Harris had left this hearing and was not in attendance when the motion was acted upon) to table this hearing per the applicants’ request until the next scheduled meeting to provide Bill Kalar with an opportunity to perform additional density and boat slip calculations using other calculation methods and to provide the applicants with an opportunity to reconsider the number of sites and slips being requested. i«^uly 10, 2014 Meeting - The Otter Tail County Auditor’s office received a letter dated July 9, 2014 requesting the tabling of this hearing until the August 14"^, 2014 Board of Adjustment meeting. An email from Kevin and Bonnie Wolter and a letter from Donn and Laurel Anderson in opposition to the variances as requested and which were received since the last hearing have been placed on file. After discussion and consideration, Thomas Lee made a motion, seconded by Ward Uggerud and unanimously carried, to table as requested by the applicant this public hearing until the August 14'^ 2014 Board of Adjustment meeting. ^^/^ugust 14, 2014 Meeting - The Otter Tail County Auditor’s office received a letter dated August 12, 2014 requesting the tabling of this hearing until the September 11, 2014 Board of Adjustment meeting. With no further business, Steve Schierer, Chairman declared the meeting adjourned at 8:15 p.m. Prepared by; Wayne Stein, Secretary The minutes were mailed on Monday, August 18, 2014 to the OtterTail County Board of Adjustment. Official action regarding these minutes will be taken by the Board of Adjustment at their next regularly scheduled meeting. e.r-'T August 14, 2014 Page # 4 ✓dune 12, 2014 Meeting - Pro’s Properties LLC and Paulette Jimenez, part of Government Lot 9, Section 25 of Dead Lake Township by Dead Lake, requested the following: Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort. We would like to eventually place 15 seasonal campsites with 15 boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a conditional use permit recommendation for approval at the May 14, 2014 Planning Commission meeting and final conditional use permit approval from the Otter Tail County Commissioners at their May 20"^, 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustment to grant the following: We are requesting a variance from the 30 foot bluff setback (the closet point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original dedicated public road corridor laid out in the plat of DeSchane Beach. We are requesting a variance from the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closet point lying 20 feet from the bluff). There will be no pad, RV or structures within the 30 foot bluff setback. We are requesting a variance from the 50 foot buffer (the closet point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the northwesterly part of the 6.3 acre tract which provide walking access to the lake. This will eliminate having to construct a new walking trail. We are requesting a variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. 1. 2. 3. 4. 5. 6. We would also like to note the total impervious surface for this tract of land will be less than 19% We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. Glen Howe, Surveyor appeared with the applicants at the public hearing. The audience was polled with the following individuals addressing the variances as requested: Cheryl Harris Gary Johnson Donn Anderson Terry McDevitt Mark Steuart Tim Sullivan Phyllis Freemann The public hearing has been recorded, is available to the public and has been incorporated as an official part of the minutes; therefore, the secretary has chosen not to summarize each person’s specific comments in the written minutes. A letter from the Dead Lake Association was read for the record by Phyllis Freeman President, Dead Lake Association Board of Directors. A letter signed by Duane Rolings (question spelling), Neal and Shirley Ramberg, Charles and Kathleen Brasel and Betty Seiple in support of the proposed development was read for the record. Letters from Gary Johnson, The Barnick’s (Pocahontas Resort) and Michael Weismiller in opposition to the variances as requested were read for the record. These letters are on file, available to the public and are incorporated as an official part of the minutes: therefore, the secretary has chosen not to summarize the content of each letter within the written minutes. Mike Harris, former owner of Northern Lights Resort and a current member of the Board of Adjustment addressed each variance requested before excusing himself from the balance of this hearing. Because this public hearing has been recorded, is available to the public and has been incorporated as an official part of the minutes, the secretary has chosen not to summarize Mr. Harris’s remarks in the written minutes. fVW:- ANDERSON LAND SURVEYING, INC. PROFESSIONAL LAND SURVEYORS & LAND DEVELOPMENT CONSULTANTS 313 SOUTH MILL STREET, FERGUS FALLS, MN 56537 (218) 739-5268 FAX (218) 739-5461 (800) 300-9276 August 12, 2014 Wayne Stein Otter Tail County Auditor’s Office RE: August 14, 2014 Board of Adjustment Meeting Dear Wayne: This letter is to inform you of our request to table the August 14, 2014 hearing on the variance application by Pro’s Properties LLC, Cheryl and Vince Prososki of Northern Lights Resort, to the September 11, 2014 hearing. We have heard a member will miss the August meeting and we would like the full complement of members present to hear our revisions. It is my understanding that with this letter of intention in your possession, it is not necessary for Cheryl and Vince or me to attend the upcoming August 14 meeting. However, 1 will be in attendance representing a different client that night and will be available for questions from the Board members if need be. We will see you on September 11, 2014. Sincerely, ANDERSON LAND SURVEYING, INC. / Glenn Howe, PLS/PE Vice President Cheryl and Vince Prososki Bill Kalar July 10, 20*14 Page # 4 4. We are requesting a variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites, 5. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 6. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. We would also like to note the total impervious surface for this tract of land will be less than 19% We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. Glen Howe, Surveyor appeared with the applicants at the public hearing. The audience was polled with the following individuals addressing the variances as requested: Tim Sullivan Phyllis Freemann Cheryl Harris Gary Johnson Donn Anderson Terry McDevitt Mark Steuart The public hearing has been recorded, is available to the public and has been incorporated as an official part of the minutes; therefore, the secretary has chosen not to summarize each person's specific comments in the written minutes. A letter from the Dead Lake Association was read for the record by Phyllis Freeman President, Dead Lake Association Board of Directors. A letter signed by Duane Rolings (question spelling), Neal and Shirley Ramberg, Charles and Kathleen Brasel and Betty Seiple in support of the proposed development was read for the record. Letters from Gary Johnson, The Barnick’s (Pocahontas Resort) and Michael Weismiller in opposition to the variances as requested were read for the record. These letters are on file, available to the public and are incorporated as an official part of the minutes: therefore, the secretary has chosen not to summarize the content of each letter within the written minutes. Mike Harris, former owner of Northern Lights Resort and a current member of the Board of Adjustment addressed each variance requested before excusing himself from the balance of this hearing. Because this public hearing has been recorded, is available to the public and has been incorporated as an official part of the minutes, the secretary has chosen not to summarize Mr. Harris’s remarks in the written minutes. Bill Kalar, Land and Resource Director, clarified the requested variances, the roles of the Planning Commission, the County Board of Commissioners, and the Board of Adjustment. Mr. Kalar also addressed density (sites) and boat slip calculations and provided the board members a detailed worksheet as to how the calculations were made, the numbers (sites and boat slips) as authorized by the ordinance/rules and the numbers (sites and boat slips) being requested. A copy of Mr. Kalar’s worksheet is on file, available to the public and has been incorporated as an official part of the minutes. Each member of the Board of Adjustment had an opportunity to ask questions of the applicants and to express their views. After discussion and consideration, Thomas Lee made a motion, second by David Wass and carried, with Michael Harris abstaining (Mr. Harris had left this hearing and was not in attendance when the motion was acted upon) to table this hearing per the applicants' request until the next scheduled meeting to provide Bill Kalar with an opportunity to perform additional density and boat slip calculations using other calculation methods and to provide the applicants with an opportunity to reconsider the number of sites and slips being requested. ■Ouly 10, 2014 Meeting - The Otter Tail County Auditor’s office received a letter dated July 9, 2014 requesting the tabling of this hearing until the August 14*^, 2014 Board of Adjustment meeting. An email from Kevin and Bonnie Wolter and a letter from Donn and Laurel Anderson in opposition to the variances as requested and which were received since the last hearing have been placed on file. After discussion and consideration, Thomas Lee made a motion, seconded by Ward Uggerud and unanimously carried, to table as requested by the applicant this public hearing until the August 14’^, 2014 Board of Adjustment meeting. July-1 Cr, 2014 Page U 3 Steve Zweber - Application approved as requested with conditions. (8:00 p.m.) Steve Zweber, part of Government Lot 6, Section 2 of Dora Township by Sybil Lake, requested the following: PIO 16000020011013 is 5.5 acres with 1,200 i+/-jfeet of lakeshoie on Sybil Lake. We are requesting variance from platting due to a practical difficulP/ created by the unique shape of how this parcel v/as originally created. With a variance, the parcel v/ill be split into bwo lots using the metes and bounds method. Though the current parcel exceeds all requirements (sq ft, setbacks, etc) for platting two Iocs in a shoreland rnanagsment area, the unique shape has created a practical difficulty related to road access. A owned strip of land roughly 350' long by 58’ wide currently serves as a driveway to the exisci.ng parcel. In accordance with subdivision platting, that 58' strip would be split down the middle to give each lot road access, with two driveways running parallel; which is not an ideal or practical layout. Additionally, this 58' strip cannot be created as a legal road ending in a cul-de-sac, as it is less than 66' wide. A proposed solution that appears most workable would be to approve a variance from platting, allowing two lots to be created. Lot Ifl would own the portion of land that has the existing driveway (58'x35Q') with frontage on Priebs Park Drive, Lot tt2 would have an easement on that driveway for approximately 350' until the driveway would split on to Lot #2. Lot »1 would be created as 2.5 acres and approximately 250' of lakeshore, it would include the exi.sting house, pole barn, detached garage, electric, well and septic. Lot »2 would be created as 3 acres of raw land and approximately 900' of lakeshore. Lot «1 exceeds all current shoreland management requirements. Lot 112 would be a conforming lot for a future structure, exceeding all current shoreland management requirements. ____ The audience was polled with no one speaking for or against the variance as requested. Chuck Zweber appeared with the applicant. Letters from Dick and Gloria Nord, and Tim and Pamela Lanz in opposition to the variance as requested were read for the record. After consideration and discussion, Ward Uggerud made a motion, second by David Wass and unanimously carried, to approve the variance as requested in the variance application dated June 14, 2014 with the condition that a registered surveyor’s drawing must be provided at the time of conveyance and a legally recorded easement must be provided to proposed lot 2 across proposed lot 1 for ingress and egress purposes to Priebs Park Drive. The variance as approved does not directly or indirectly grant any other variances for future development. It was also noted that applicant’s parcel is large enough that it would be platted. Bruce Wentz - Application approved as requested with a condition. (8:18 p.m.) Bruce Wentz, Lot 9 Meyer's Second Addition, West McDonald Lake in Dora Township, requested the following: Landscape in bluff area: proposed retaining wail and stone steps to be constructed affect larger area than existing retaining wall. Need variance to complete landscape improvements in bluff zone. Peter Boyle represented the applicant at the public hearing. The audience was polled with no one speaking for or against the variance as requested. After consideration and discussion, David Wass made a motion, second by Michael Harris and unanimously carried to approve the variance as requested in the application dated June 18, 2014 and as depicted on the drawing submitted with the variance application with the condition that no more than 25% of the total eligible lot area can be covered with impervious surfaces. The variance as approved does not directly or indirectly grant any other variances for the proposed development of for any future development. Pro’s Properties LLC and Paulette Jimenez - Tabled per applicant’s request. (6:00 p.m.) June 12, 2014 Meeting - Pro’s Properties LLC and Paulette Jimenez, part of Government Lot 9, Section 25 of Dead Lake Township by Dead Lake, requested the following: Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort. We would like to eventually place 15 seasonal campsites with 15 boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a conditional use permit recommendation for approval at the May 14, 2014 Planning Commission meeting and final conditional use permit approval from the Otter Tail County Commissioners at their May 20*^, 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustment to grant the following: 1. We are requesting a variance from the 30 foot bluff setback (the closet point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original dedicated public road corridor laid out in the plat of DeSchane Beach. 2. We are requesting a variance from the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closet point lying 20 feet from the bluff). There will be no pad, RV or structures within the 30 foot bluff setback. 3. We are requesting a variance from the 50 foot buffer (the closet point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the,riQrthwesterly part of the 6.3 acre tract which provide walking access to the lake. This will eliminate having to const;[;u((^^i»)|]Cn walking trail. K n 9 2014 NDERSON LAND SURVEYING, INC. PROFESSIONAL LAND SURVEYORS & LAND DEVELOPMENT CONSULTANTS 313 SOUTH MILL STREET, FERGUS FALLS, MN 56537 (218) 739-5268 FAX (218) 739-5461 (800) 300-9276 July 9, 2014 Wayne Stein Otter Tail County Auditor’s Office RE: July 10, 2014 Board of Adjustment Meeting Dear Wayne: This letter is to inform you of our request to table the July 10**’, 2014 hearing on the variance application by Pro’s Properties LLC, Cheryl and Vince Prososki of Northern Lights Resort, to the August M'**. 2014 hearing. Because of Steve Schierer’s absence at the upcoming July 10”* hearing due to his recent heart surgery, we feel it would be better for all involved to wait for the August 14**' hearing and hope he is able to chair that meeting. It is my understanding that with this letter of intention in your possession, it is not necessary for Cheryl and Vince or me to attend the upcoming July lO*** meeting. We will see you on August 14**’, 2014. Sincerely, ANDERSON LAND SURVEYING, INC. Glenn Howe, PLS/PE Vice President Cheryl and Vince Prososki Bill Kalar SCANNED r ;!iH <L6 !3> rtS ^ytsre^r 1^ j /<x\ 6 /9 V ^ ; .:r 'f- !?,* ^ L tc. dn Ut\ / - /^y s Uon.2Z15 IT •y 1 J ■ :i: J —REeeiVEo- ~JUIr0d~2QW -I i! t^ND&RESOURggI ;• i(■ K-i-r-$4^-H^j.i- i- ■J ■I iii ; S, J r- ■; otter Tail County, Planning Commission June 11,2014, Page 2 Tom & Barb Estrem - Withdrawn - No Action Necessary: A Conditional Use Permit Application (as stated by the Applicant on the Application): To manage and control storm water and drainage from construction of new dwelling, driveway and patio. Earth moving will not exceed 500 cubic yards for construction of new home and drainage control. See plans on file with Land & Resource Office. Note: 2 supporting Firms: 1. Landscape Architecture Firm - Steve Deal 2. Lowry Engineering - Danielle Kukowski & Jonathan Lowry. The proposal is located in Satter-Humphrey Ranch Camp SWLY 44.85’ on lake of Lot 54 & Lots 55, 56, 57, 58, 59 & 60, Section 27 of Tumuli Township: Ten Mile Lake (56-613), RD. Bill Kalar read a letter (dated June 11, 2014), from Nicholas J. Heydt (attorney) requesting the Conditional Use Permit Application be withdrawn. Townboard Members, Maureen Ricks & Mark Overline, and LeRoy Mude (neighbor) discussed the Conditional Use Permit Application proposal with the Commission and were informed that due to the withdrawal, there would not be any action taken by the Planning Commission. No Action Required: Due to the withdrawal of the Application, the Planning Commission did not take any action on this request. GTS Educational Events - Workshops: Bill Kalar distributed information from GTS Educational Events on upcoming workshops for Planning Commission and Board of Adjustment Members. He indicated that if anybody is interested in attending, they should let Marsha know in order for her to complete the registration. Northern Lights Resort (Dead Lake) Variance Application - Discussion: Commission Members requested clarification on the required variances for Northern Lights Resort. It was noted that they have filed a Variance Application that will be considered at the June 12, 2014 Board of Adjustment Meeting. Adjourn: At 7:45 P.M., Chairman Olson set the Meeting. The next Meeting is scheduled for 6:30 P.M. on July 9, 2014. Respectfully submitted. Marsha Bowman Recording Secretary OTC Board of Commissioners’ Minutes May 20, 2014 Page 3 Conditional Use Permit - Volk Properties LLC: Motion by Rogness, second by Froemming, and unanimously carried to approve a Conditional Use Permit to re-grade the lot and reconstruct a walkway as presented. The project is located at Plainview Sandy Beach Lot 8, Section 3 of Edna Township; Little McDonald Lake (56-328). Conditional Use Permit - Northern Lights Resort/Pro’s Properties LLC: Motion by Froemming and second by Rogness to approve a Conditional Use Permit to add 13 campsites as recommended by the Planning Commission and 9 centralized boat slips on the proposed new property. Previous resort owner, Cheryl Harris, spoke in favor of the proposed expansion, the economic benefits resorts bring to communities and the loss of resorts throughout the County. Because of the economic benefits resorts bring to Otter Tail County, a motion was offered by Huebsch, seconded by Rogness and unanimously carried to amend the previous motion to approve 1^3cam£si^ and 12 centralized boat slips subject to the applicants obtaining the necessary variances from the Board of Adjustment. The proposed , , project is compatible with the usage of the surrounding area. The project is located in Pt of GL 9 andTrTn , GL 9 & 10, Section 25 of Dead Lake Township; Dead Lake (56-383), NE. Recess & Reconvene At 11:24 a.m.. Chairman Johnson recessed the meeting of the Otter Tail County Board of Commissioners for a short break. The Board of Commissioners meeting was reconvened at 11:28 a.m. RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT FOR SAFE COMMUNITIES GRANT APPLICATION Otter Tail County Resolution No. 2014 - 35 Commissioner Rogness offered the following and moved its adoption: Be it resolved that Otter Tail Count/ Department of Public Health enter into a grant agreement with the Minnesota Department of Public Safety, for traffic safety projects during the period from October 1, 2014 through September 30, 2015. The Director of Public Health is hereby authorized to execute such agreements and amendments as are necessary to implement the project on behalf of Otter Tail County Public Health and to be the fiscal agent and administer the grant. I certify that the above resolution was adopted by the Board of Commissioners of Otter Tail County on May 20. 2014. Commissioner Lindquist seconded the resolution and, upon being put to vote, the resolution was unanimously adopted this 20“^ day of May, 2014. OTTER TAIL COUNTY BOARD OF COMMISSIONERSDated: By: Wayne Johnson, Board of Commissioners ChairAttest: Larry Krohn, Clerk June 12,2014 F^ge # 3 Douglas and Carol Crice - Variance application approved as requested with a condition. (7:30 p.m.) - Continued Furthermore, it will not extend as far towards the lake as the current stairway or shed do. Most of the lot and the vast majority of the impervious surface drains into the swamp on the south side and then through 200 yards of cattails which are often used to clean impurities. If granted, we would be willing to decrease our existing impervious surface by 10%. As we advance in age, we are concerned about the safety of such a narrow deck. Chris Svingen, Attorney, represented the applicants at the public hearing. The audience was polled with no speaking for or against the variance as requested. After discussion and consideration, David Wass made a motion, second by Michael Harris and unanimously carried, to approve the variance as described in the variance application dated May 19, 2014 and as depicted on the drawing submitted with the application with the condition that applicants must reduce their impervious surface coverage by 10% as stated they would do if the variance request was granted. It was noted that a 10% reduction in impervious surface coverage is a good trade for the variance granted. The variance as approved will have no negative impact on this property or the immediate neighborhood. Break - Approximately five minutes. Rick and Carolyn DeFries - Variance application approved as requested. (7:41 p.m.) Rick and Carolyn DeFries, Lots 18 and 19, Biases Beach, Otter Tail Lake in Otter Tail Township, requested the following: add a second story on existing house, which is now 55’ from water, setback is 75; so I request a 20’ variance from high water. No change on impervious with second floor. Darold Woessner, Contractor appeared with the applicants at the public hearing. The audience was polled with no speaking for or against the variance as requested. After discussion and consideration, Thomas Lee made a motion, second by Paul Larson and unanimously carried, to approve a variance of 20’ from the required ordinary high level setback of 75’ for the addition of a second story 55’ from the ordinary high water level. The overall footprint of the existing structure will not change. The proposed development will not obstruct the view from neighboring properties and the variance as approved is consistent with past decision of the board. Pro’s Properties LLC and Paulette Jimenez - Tabled (7:45 p.m.) Pro’s Properties LLC and Paulette Jimenez, part of Government Lot 9, Section 25 of Dead Lake Township by Dead Lake, requested the following: Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort. We would like to eventually place 15 seasonal campsites with 15 boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a conditional use permit recommendation for approval at the May 14, 2014 Planning Commission meeting and final conditional use permit approval from the Otter Tail County Commissioners at their May 20**’, 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustment to grant the following: 1. We are requesting a variance from the 30 foot bluff setback (the closet point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original dedicated public road corridor laid out in the plat of DeSchane Beach. 2. We are requesting a variance from the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closet point lying 20 feet from the bluff). There will be no pad, RV or structures within the 30 foot bluff setback. 3. We are requesting a variance from the 50 foot buffer (the closet point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the northwesterly part of the 6.3 acre tract which provide walking access to the lake. This will eliminate having to construct a new walking trail. 4. We are requesting a variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites. 5. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 6. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. We would also like to note the total impervious surface for this tract of land will be less than 19%a June 12,2014 Page # 4 Pro’s Properties LLC and Paulette Jimenez - Tabled (7:45 p.m.) - Continued We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. Glen Howe, Surveyor appeared with the applicants at the public hearing. The audience was polled with the following individuals addressing the variances as requested: Cheryl Harris Gary Johnson Donn Anderson Terry McDevitt Mark Steuart Tim Sullivan Phyllis Freemann The public hearing has been recorded, is available to the public and has been incorporated as an official part of the minutes; therefore, the secretary has chosen not to summarize each person’s specific comments in the written minutes. A letter from the Dead Lake Association was read for the record by Phyllis Freeman President, Dead Lake Association Board of Directors. A letter signed by Duane Rolings (question spelling), Neal and Shirley Ramberg, Charles and Kathleen Brasel and Betty Seiple in support of the proposed development was read for the record. Letters from Gary Johnson, The Barnick’s (Pocahontas Resort) and Michael Weismiller in opposition to the variances as requested were read for the record. These letters are on file, available to the public and are incorporated as an official part of the minutes: therefore, the secretary has chosen not to summarize the content of each letter within the written minutes. Mike Harris, former owner of Northern Lights Resort and a current member of the Board of Adjustment addressed each variance requested before excusing himself from the balance of this hearing. Because this public hearing has been recorded, is available to the public and has been incorporated as an official part of the minutes, the secretary has chosen not to summarize Mr. Harris’s remarks in the written minutes. Bill Kalar, Land and Resource Director, clarified the requested variances, the roles of the Planning Commission, the County Board of Commissioners, and the Board of Adjustment. Mr. Kalar also addressed density (sites) and boat slip calculations and provided the board members a detailed worksheet as to how the calculations were made, the numbers (sites and boat slips) as authorized by the ordinance/rules and the numbers (sites and boat slips) being requested, A copy of Mr. Kalar’s worksheet is on file, available to the public and has been incorporated as an official part of the minutes. Each member of the Board of Adjustment had an opportunity to ask questions of the applicants and to express their views. After discussion and consideration, Thomas Lee made a motion, second by David Wass and carried, with Michael Harris abstaining (Mr. Harris had left this hearing and was not in attendance when the motion was acted upon) to table this hearing per the applicants’ request until the next scheduled meeting to provide Bill Kalar with an opportunity to perform additional density and boat slip calculations using other calculation methods and to provide the applicants with an opportunity to reconsider the number of sites and slips being requested. Michelle Suckow - Variance application approved as requested. (8:56 p.m.) Michelle Suckow, part of Government Lot 1, Section 34 of Girard Township by East Battle Lake, requested the following - 1. Variance in code instead of 4’ wide steps: a. I would like to go to 5’ due to the fact of assisting Elderly/Handicapped up and down the steps. 2. Variance on landings: Per blueprint, included. (Each includes the 5’ steps.) a. Top landing 10’ by 20’. Sitting area while still being part of the lake activities. b. Middle landing 8’ by 16’. This surface is a resting spot if need for the Elderly/Handicapped while on the way up or down. c. Bottom landings, one on left and one on right, each 10’ by 12’, this is for a sitting area on each side of steps. Brian Suckow represented the applicant at the public hearing. The audience was polled with no speaking for or against the variance as requested. After discussion and consideration, David Wass made a motion, second by Ward Uggerud and carried with Michael Harris voting no, to approve the variances as requested for the steps and landings as described in the variance application dated April 16, 2014 and as depicted on the drawings submitted_wittUt>e» yypn application. C vOANPitiU B OF ^ Llp'CHizAiL Date Stamp Received ^NO«RS8oyRCE OBAJ^ lAiC^ i£'jo -?2>> ^ Pn^L^i F.AL&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 iips-5COMPLETE THIS APPLICATION IN BLACK INK Li^ lAs p.e£or Owner/Applicam - Cheryl and Vince Prososki, Pro’s Properties LLC, Parcel No. 14000250197001,35387 Northern Lights Trail Richville MN 56576 PROPERTY OWNER Owner of proposed 6.3 acre property to be purchased - Paulette Jimenez, Parcel No. 14000250197011,201 Beckworth Lane, Irom, SC 29063 MAILING ADDRESS Receipt Number Accepted By / Date 218-346-6046 SC,-393 ___LAKE CLASS *0^LAKE NUMBER LAKE NAME SECTION TOWNSHIP RANGE TOWNSHIP NAME QPARCEL NUMBER^rJL/ Owner of proposed 6.3 acre property to be purchased wner/Applicant - Cheryl and Vince Prososki, Pro’s Properties LLC, Parcel No. 14000250197001,35387 Northern Lights Trail, Richville, MN 56576 Paulette Jimenez, Parcel No. 14000250197011, 201 Beckworth Lane, Irom, SC 29063 Owner/Applicant-CherylandVincePrososki,WD Doc. No. 1106774 Owner - Paulette Jimenez, Personal Representatives Deed Doc. No. 889038 LEGAL DESCRIPTION Q f+fci-1 TYPE OF VARIANCE REQUESTED (Please Check) structure Setback Structure Size Sewage System____Subdivision Cluster Misc. SPECIFY HOW YOUR PROJECT VARIES FROM ORDINANCE REQUIREMENTS. PLEASE BE BRIEF AS THIS WILL BE USED FOR PUBLIC NOTIFICATION. Northern Lights Resort is considering purchasing a 6.3 acre tract southerly of and adjoining the existing resort. We would like to eventually place 15 seasonal campsites with 15 boat slips in the 6.3 acre tract (a phase development) and operate those campsites as part of our resort. We have obtained a CUP recommendation for approval at the May 14, 2014 Planning Commission meeting and final CUP approval from the Otter Tail County Commissioners at their May 20, 2014 meeting for 13 seasonal campsites with 12 boat slips as shown on the Certificate of Survey. We are asking the Board of Adjustments to grant the following: 1. We are requesting a variance from the 30 foot bluff setback (the closest point of the existing trail lies 3 feet from the bluff) in order to continue to use the existing trail running along the north side of and providing access to 8 of the proposed seasonal campsites. This will eliminate having to construct a new access road. The existing trail lies within the original Dedicated Public Road corridor laid out in the plat of DeSchane Beach. 2. We are requesting a variance from the 30 foot bluff setback for a small portion of 4 of the proposed seasonal campsites (the closest point lying 20 feet from the bluff). There will be no pad, RV or structures within the 30 foot bluff setback. CONTINUED ON BACK _________________________________ I UNDERSTAND THAT I HAVE APPLIED FOR A VARIANCE FROM THE REQUIREMENTS OF THE SHORELAND MANAGEMENT ORDINANCE/SUBDIVISION CONTROLS ORDINANCE / SANITATION CODE / SETBACK ORDANAND AN/OR WECS ORDINANCE OF OTTER TAIL COUNTY. I ALSO UNDERSTAND THAT OTHER PERMITS MAY BE REQIJIREO; IT IS MY RESPONSIBILITY TO CONTACT LAND & RESOURCE MANAGEMENT REGARDING THIS MATTER. £til SIGN^mi^E OF PR6PERTY OWNER / AGENT FOR OWNER APPLICANT MUST BE PRESENT AT THE HEARING (Applicant Will Receive Notification As To The Date/Time Of Hearing) 345,194 • Victor Lundoen Co . Printers * Fergus Falls, Minnesota 3. We are requesting a variance from the 50 foot buffer (the closest point of the existing trail lies 5 feet from the property line) for those portions of the existing walking trail lying within the 50 foot buffer along the northwesterly part of the 6.3 acre tract which provide walking access to the lake. This will eliminate having to construct a new walking trail. 4. We are requesting a variance from the Tier 1 density calculation across the 6.3 acre tract for 2 of the 4 seasonal campsites. 5. We are requesting a variance from the Tier 2 density calculation across the 6.3 acre tract for 10 of the 11 seasonal campsites. 6. We are requesting a variance from the number of boat slips allowed by Tier 1 density calculations across the 6.3 acre tract for 13 of the 15 boat slips. ; We would also like to note the total impervious surface for this tract of land will be less than 19%. We believe, and the Otter Tail County Commissioners agree, the land is best suited for the type of development approved and the acquisition of this property will allow Northern Lights Resort to better serve the general public. TimeDate Of Hearing Motion Chairman/Otter Tail County Board of Adjustment Permit(s) required from Land & Resource Management Yes (Contact Land & Resource Management) No Copy of Application Mailed to Applicant, Co. Assessor and the MN DNR LR Official/Date bk 072011-001 mm^w-"'‘“'«rH». fsr?u (mHATami ****-«^»*Fer M4TB» fpotfTACe - ays/as • n (Mrs omms Kescter rvx / c4U3A>irKi»» toml aae«rm / • 9E^5M g.r.n7T41 t. MC?IAMP9^ BLUFTS, -0,347, -21,300AKCA ejOMmai NET AREA - 2Ml»0 S4SE OOe^ CF C»«UMS (MTS - 2M^«42«einuTtn AUM/iBLE c0oirr TUX - 330Tt£R I MvecR er (M79 Aue*tep - seXBTPtS (MT5 • 0 6UHM9^ » mC SIT^ I UCttt, or M4TZR TxatTAoe - 9rTtan/t2s - a.7 ums pnoFoaep nesarr ngt / cuezA/ims- TUTAL AXeA 04 TWi t (303.^ • >A$,9S * l3,307J - 4t3,tA! 3f. TUTAL AKEA EXCLUO04a‘I. t-mAMDS, BUO>rS, -SS.fi, -U3, -Tt.sao, -4 M, >4^037, -49,347 X04 at aartt e«M. NET 4Re« - bf. BASE O06FTT Cr Dt4£UMS (MTS • 977,499/80,<»9 ' 4.77ruxnrt AUMieie oetOfTr oat nex « 47? « rs • 7.<b TtBt / MTSER OF UNTTS AU04a> - 7 - 0oasrm; (mt9 cxams^ 0 rvc $m9t < TOTM AREA M ri07 7 - 00,221 9.F. TUTAL AXEA OOMONOiI. tOTlAAIDS,X04 OR 0ELO4 e*«4OLUFF3, -IO,A<2, ~F4,OV. -0,104 MET AXEA • 04006 6.F. rwnjFi OEXSrrr perTOR I ^ROPOSec P;jRCHASE CERTIFICATE OF SURVET FOR- CHERYL AND VINCE PROSOSKI FEU} BCEK0RM« orcartjci HD.ALS-220/1G84Tn-13 2T7-I».NDERSON LAND SURVEYING. INC.04B3OD orIMG fU£CRD riLC%JAK jwsuntYaMTB4DB>TOfROweAiaiTANCEfOR TitAcausmoNoetANPsvftNciovmavfoeMOirmBuiucHTsiiaoKT 2T7-I3BOA 277-13 UBA»> raorETBOTUL LAND JLUtVTfDRi & (AND DEWaOMONT CDNOILTANn S298 OMNW (MCER MDTOMBTJTitPiiesftrAmNUQtmoaHTSfORAPvaueHeAUNOEEmnaortstTAacowmoAitDOfADJumEDm. 3U TOLTm Mill nSEET, miCUS FAUl. hOK S«»7 (Z18) 739- REVI9KK 7750^OPsJ> nOCQ SOMTTtt S-I3&-40 ..\ • ■ I ItI i 1 I fI eI1\I1 It III c ha'? \ \\ 4-. otter Tail County Shoreland Management Ordinance Effective August 1,2013; Page 3 3. Agriculture; The use of land for agricultural purposes, including farming, dairying, pasturage agriculture, horticulture, floriculture, viticulture, and animal and poultry husbandry and the necessary accessory uses for packing, treating, or storing the produce: provided, however, that the operation of any such accessory uses shall be secondary to that of the normal agricultural activities. 4. Animal Feedlot: A lot or building or combination of lots and buildings intended for the confined feeding, breeding, raising or holding of animals and specifically designed as a confinement area in which manure may accumulate or where the concentration of animals is such that a vegetative cover cannot be maintained within the enclosure. For purposes of these parts, open lots used for the feeding and rearing of poultry (poultry ranges) shall be considered to be animal feedlots. Pastures shall not be considered animal feedlots under these parts. 5. Attached Structure: Two buildings are attached when they share a common wall or portion of a wall with a door, so that a person may travel from any portion of one building to any portion of the second building without going outside. 6. Bed & Breakfast Facility: An owner-occupied single family residence at which lodging and meals are provided to registered guests. The Bed & Breakfast facility shall comply with all the applicable State and Local regulations for providing food and lodging. Bluff: A topographic feature such as a hill, cliff, or embankment having all of the following characteristics: A. Part or all of the feature is located in a Shoreland Area. 7. B. The slope rises at least 25 feet (ft.) above the ordinary high water level (OHWL). C. The grade of the slope from the toe of the bluff to a point 25 ft. or more above the OHWL level averages 30% or greater. D. The slope must drain toward the waterbody. If the 50 ft. segment on either side of the point at which a feature is 25 ft. above the OHWL has a slope of 30% or more, it is a bluff. Bluff Impact Zone (BIZ): A bluff and land located within 30 ft. from the top8. of a bluff. Boardwalk: A permanent above grade constructed walkway, not to exceed 4 ft. in width, used to provide access to a lake or river where a wetland is present. Boathouse: A structure designed and used solely for the storage of boats 9. 10. or boating equipment. Buffer Zone: That portion of a parcel of land which adjoins neighboring parcels and is not used for structures, manufactured homes, recreational camping units or vehicle parking or storage; and which is maintained in a sightly manner with natural vegetation. 11. Buildable Area: The minimum continuous area remaining on a lot or parcel of land after all setback requirements, bluffs, areas with slopes greater than 25 percent, all easements and right-of-ways, significant historic sites, wetlands, and land less than 3’ above the OHWL of public waters are subtracted. Building: Any fixed construction with walls or a roof. Building Line: That line measured across the width of the lot at the point where the main structure is placed in accordance with setback provisions. Centralized Sewage System: A system of treating sewage from multiple sources which may require approval by the Minnesota Pollution Control Agency. 12. 13. 14. 15. otter Tail County Shoreland Management Ordinance Effective August 1, 2013; Page 16 state or federal agencies such as a watershed district, the Minnesota Department of Natural Resources or the United States Army Corps of Engineers. 2. Alterations must be designed and conducted in a manner that ensures only the smallest amount of bare ground is exposed for the shortest time possible. 3. Mulches or similar materials must be used, where necessary, for temporary bare soil coverage, and a permanent vegetation cover must be established within 10 days. 4. Diversions, silting basins, terraces and other methods to trap sediment must be used, where necessary, to prevent erosion. 5. Fill must be stabilized according to accepted engineering standards. 6. Fill or excavated material must not be placed in BIZ. 7. Fill must not restrict a floodway or destroy the storage capacity of a flood plain. 8. Any alterations at or below the OHWL of public waters must first be authorized by the Commissioner, under Minnesota Statutes, Section 103.G.245. 9. Any alterations of topography must only be allowed if they do not adversely affect adjacent or nearby properties. 10. Placement of natural rock riprap, including associated grading of the shoreline and placement of a filter blanket, is permitted if the finished slopes does not exceed 3 ft. horizontal to 1 ft. vertical, the landward extent of the rip rap is within 10 ft. of the OHWL and the height of the rip rap above the OHWL does not exceed 3 ft. 11. Public and private roads, driveways and parking areas must be designed to take advantage of natural vegetation and topography to achieve maximum screening from view from public waters. They must be designed and constructed to minimize and control erosion to public waters consistent with the field office technical guides of the local Soil and Water Conservation District or other applicable technical materials. a. Roads, driveways and parking areas must meet structure setbacks and must not be placed within BIZ and SIZ, when other reasonable and feasible placement alternatives exist. If no alternatives exist, they may be placed within these areas, and must be designed to minimize adverse impacts. b. Public and private watercraft access ramps, approach roads and access related parking areas may be placed within SIZ provided the vegetative screening and erosion control conditions of this Section are met. 12. The applicant for a Conditional Use Permit or a Grade/Fill Permit involving grading and filling or any alteration of the existing topography shall be legally responsible for all surface water runoff problems that may occur in the future. C. Excavations on shorelands where the intended purpose is connection to a public water shall require a permit from the Administrative Officer before construction is begun. Such permit may be obtained only after the Commissioner of Natural Resources has granted permission for work in beds of public water. D. Unless otherwise indicated by the Conditional Use Permit or a Grade/Fill Permit, all grading, filling or alteration of the existing topography, including stabilization, shall be performed between April 15th and October 1st. The April 15th to October 1st construction period shall not be applicable to Conditional Use Permits and Grade/Fill Permits for grading, filling or alteration of the existing topography involving finished grade slopes of less than 12% consistent with the steep slope requirements and when appropriate methods for preventing erosion are adhered to. otter Tail County Shoreland Management Ordinance Effective August T 2013: Page 23 Dwelling units or dwelling sites must be clustered into one or more groups and located on suitable areas of the development. They must be designed and located to meet or exceed the following dimensional standards for the relevant shoreland classification: setback from the OHWL, elevation above the surface water features and maximum height. Setbacks from the OHWL must be increased for developments with density increases. Maximum density increases may only be allowed if structure setbacks from the OHWL are increased to at least 50% greater than the minimum setback, or the impact on the waterbody is reduced an equivalent amount through vegetative management, topography or additional means acceptable to the Local Government Unit and the setback is at least 25% greater than the minimum setback. b. 50 ft. Buffer Zone. c. Road widths shall comply with the most current Otter Tail County road standards. d. Setback Requirements, see III.4.A. e. There shall be a centralized sewage system which meets the standards, criteria, rules or regulations of the Otter Tail County Sanitation Code, the Minnesota Department of Health and the Minnesota Pollution Control Agency. f. Shore recreation facilities, including but not limited to swimming areas, docks and watercraft mooring areas and launching ramps must be centralized and located in areas suitable for them. Evaluation of suitability must include consideration of land slope, water depth, vegetation, soils, depth to ground water and bedrock or other relevant factors. The number of spaces provided for continuous beaching, mooring or docking of watercraft must not exceed one for each allowable dwelling unit or site in the first tier. Launching ramp facilities, including a small dock for loading and unloading equipment, may be provided for use by occupants of dwelling units or sites located in other tiers. g. Structures, parking areas and other facilities must be treated to reduce visibility as viewed from public waters and adjacent shorelands by vegetation, topography, increased setbacks, color or other means acceptable to the Local Unit of Government, assuming summer leaf-on conditions. h. Any attached conditions such as limits on overall density, minimum size of the cluster development, restriction to residential uses or minimum length of water frontage may be demanded. 1 • i. 2 off street parking spaces shall be provided for each dwelling unit. j. At least 50% of the property must be, and remain, open space. Of this open space, 50% (25% of the entire parcel) is intended to enhance water absorption and maintain wildlife habitat, and must be maintained in an unmanicured wild state, which could include forest land, prairie, or wildflower plantings. The other 50% of the open space (25% of the entire parcel) is intended to replace yard space, which would otherwise exist in a lot and block development and may include lawns, gardens, and outdoor recreational facilities such as golf courses, which may be open to the public. Cluster developments must also conform with the storm water management provisions in Section IV.8. 1. Dwelling units or sites, road right-of-ways or land covered by road surfaces, parking areas or structures, except water oriented accessory structures or facilities, are developed areas and should not be included in the computation of minimum open space. 2. Open space must include areas with physical characteristics unsuitable for development in their natural state, and areas containing significant historic sites or unplatted cemeteries. Letters Received for the July 2014 Meeting SCANNED Wayne Stein Bonnie Wolter <kbwolter@gmail.com> Tuesday, July 08, 2014 9:44 PM Wayne Stein Pros properties variance request From: Sent: To: Subject: To whom it may concern. We are the property owners at 35296 northern lights drive. We would like to go on record that we are against the per posed development of camp sight area by Pros properties LLC. We are concerned about boat traffic and road traffic. We chose Dead lake because it is an environmental lake, and feel you should take this into consideration. Thank you. Kevin and Bonnie Wolter 18422 Belgian Drive Belle Plaine, Mn. 56011 Sent from my iPad 1 ■ t July 5, 2014 RFCPl\/c:rOtter Tail Board of AdjustmentTO: Donn and Laurel AndersonFROM:JUi 08 20 U 35328 Northern Lights Drive, Dead Lake Northern Lights Variance RequestsREF: As expressed before, it is our opinion the approval of the Conditional Use Permit was wrong. Not only wrong, but against common sense in consideration of issues on a classified environmental lake. The introduction of backlot campsites with access to the lake is a terrible precedent. High density development between two existing property owners is not logical. The 217' of involved lakeshore is currently all thick growth of bulrushes in muck. Key points introduced at last month's meeting are: -The consensus of the Dead Lake Association is against this development -The best property on Dead Lake are those which do not require any variances. -Why are variances now being considered solely for financial gain? -The calculation for dockage on this proposed development as per the Otter Tail Ordinance was three docks. This entire development is a bad idea; the neighbors are opposed to it. If we desired to be on a commercial lake, we would have purchased lake property elsewhere. We do not wish to have backlot sites with dockage to the Lake. If all who are so much in favor of commercial development on Dead Lake, why not have a Walmart with dockage to the Lake. It would make about as much sense as this development. It is indeed the lakeshore property owners who feel like second class citizens having this issue pushed on us. tincerelv. V-L> Donn ana Laurel Anderson ' t , i Letters for the June 2014 Meeting SCANNED Ottertail County Planning Commission; We strongly oppose the addition of more camping units at the Northern Lights Resort location. The lake is a natural environment lake which makes its guidelines more restrictive than other lakes, for good reason. Land would be disrupted as far as tree removal, grading, digging for electrical and installation of septic systems, not to mention what would occur regarding the lakeshore and beach? We would like to believe that the guidelines and regulations that are in effect should apply equally to everyone so that consistency of expectations is in effect. We proposed adding more camping units as well, and were denied based on current land use and existing guidelines that are in effect. We were told lakeshore footage is one big factor and that strict guidelines wouldn't allow for the addition of any more camping units. We wish to be good neighbors and feel that everyone should work together to keep the lakes best interests in mind so that it can be enjoyed by future generations. The Barnick's POCAHONTAS RESORT received JUH 11 ZH" RESOURCE SCANHED 5/5/2014 ....... 'JUNOQm otter Tail County Board of AdjustmentTO: I IFERGUS FALLS, Mn'^ ' Michael WeismillerFROM: 35282 Northern Lights Drive, Dead Lake Variance Meeting for Pro's Property LLCREF: I am opposed to the Northern Lights Resort variance requests. My major objection is because of a proposed trail that will be next to my property line. I have had my lake home on Dead Lake for over 30 years. The thought of having 15 campsites as neighbors is not what anybody would wish for. The idea of backwoods' campsites is just not consistent with that of an environmental lake, and of property owners in the area. The 6.3 acres in question is located between my property and a cabin owned by the Sabol family. If approved, this proposal would surround the Sabol cabin with resort cabins and campsites. It just isn't fair for the Sabol Family, my lake home and all the lakeshore owners in the Bay. The east bay of Dead Lake is separated from the main lake by a narrows, and addition of 15 campsites will definitely stress our tittle bay. Please deny this request. Thanks, Mike Weismiller SCAN^tO f * VETO 6 -8-2014 lJUiv ; ?0I41To Otter Tail County Board of Adjustment L jR ■ cRGu------------gFrom Gary Johnson 35336 and 35338 Northern Lights Drive Ref Hearing for Pro's Properties LLC I am opposed to Pro's Properties LLC variance requests for part of Government Lot 9. I own Lot 8 and 9 the last two developed lots on DeShane Beach. When I purchased this property 20 years ago 1 knew that there was a shoreland management ordinance that I felt would protect my property investment that we lake shore owner's pay a premium price for. A shoreland ordinance can change over time and we need variance's to m.ake some lots buildabie. As in the case of DeSchane Beach which did not require 200' of shoreline per lot or a 200' set back when it was platted and developed. However in the case of part of government lot 9 that has not been developed the current shoreland ordinance density and setback rules should apply The reason we have shoreland management ordinance's is 1 to protect the lake and watershed 2 to protect property owner's investments 3 so we can all live in harmony So I ask the member's of the ottertail county board of adjustment how would you feel if somebody bought the property next to you, and then was granted multiple and extreme variance's from the county. And then built a campground next to you. Also; 1 would like to add, that all of the tree's that were removed in the cul-de-sac at the end of northern lights drive that were environmentally friendly and aesthetically pleasing to me my neighbor's and anybody who went down the road. They were removed according to the clerk of dead lake township because the grader got stuck. Those tree's had been there more than 40 years. It make's it real easy to turn a big RV around now. Was this done to accommodate the proposed development ? Also I would like to note that both former northern lights resort owner's currently work for deadlake township and that one of them is on the board of adjustment and will be voteing on this variance request Thank you for reading my letter Sincerely Gary Johnson June 7, 2014 To: Members of the Board of Adjustments From: Neighbors and Adjacent Landowners to Northern Lights Resort, Dead Lake Township, Dead Lake RE: Variance Request from Northern Lights Resort We, the neighbors and adjacent landowners to Northern Lights Resort have been apprised of the variance being applied for and all items described on the variance request. This letter will serve, as shown by the signatures below, our cooperative and full support for ail items included on the variance request. We acknowledge that Vince and Cheryl Prososki have made strides to improve the quality of the resort and quality of water with preventive run off methods and replacing hill to natural plants and other measures. We feel the use of the existing roads and trails in the new property will be advantage so not have to build new ones. We appreciate the conservation methods of using existing trails and the centralized dock system and others which will improve the lake and land usage. We feel this project will be a good use of the property. Wayne Stein mpfreemanaz@juno.com Thursday, June 12, 2014 12:19 PM Wayne Stein bswanson@eot.com; bswanson@arvig.net; kimpleJ@aol.com; khelm@eot.com; dmmartin2@earthlink.net; deadlakesully@prtel.com; nlr@northernlightsresort.com; dhanselman@arvig.net; John_halvors@hotmail.com; jekimp@aol.com; steuartmark@arvig.net Hearing for Variance on Pro’s Properties From: Sent: To: Cc: Subject: Wayne: Attached is a letter from the Dead Lake Ass'n Board in regard to this variance. Would you please distribute this to the Board of adjustment? We also understand that Mike Harris is a Board member. As he was a recent owner of Northern Lights Resort we hope he will recuse himself from the discussions of these variance requests. I will also bring additional copies if you need them. Thank you! Phyllis Freeman at 480-586-1241 1 Odd trick Kills diabetes 100% scientifically-proven way to control blood sugar in 3 short weeks FightYourPiabetesT odav.com 1 ' vJl \l<iyic(,inrfL Arfp SlMlMi'ic Ai 'ifEXISTING RESORT IMPERVIOUS AREA CALCULATIONS CABIN / C6<KJ + DECK (242) + STEPS (16) + CX3NC (N) = <173 S.F. CABIN 2 (SSa) + DECK (36) + STEPS (6) = 600 S.F. CABIN 3 (ESS) + DECK (56) + STEPS (lO) + CONC (27) - 620 S.F. CABIN 4 (B27) + DECK (^) + CONC (SI) = 623 S.F. CABIN 5 (563) + DECK (I7<1) + STEPS (16) + CONC (13) = 771 S.F. CABIN 6 (566) + DECK (52) = 6/8 S.F. SCALE IN FEET SCALE: I INCH = 40 FEET CABIN 7 (542) + DECK (lOI) + CONC (40) = 683 S.F.BEARINGS ARE BASED ON OTTER TAIL COUNTY COORDINATESCABIN a (4<16) + DECK (64) + STEPS (6) + CONC (22) = 588 S.F.CABIN <7 (46l) + DECK (64) + STEPS (<1) - 534 S.F. CABIN lO (1616) + DECK I (130) + STEPS I (34) + DECK 2 (85) + STEPS 2 (4) + AC (6) = 1875 S.F. ITK ADJUSTtlENT AS DETERtllNED BY THE FINDOT CCTRS/VRS NETMORK. DENOTES IRON tlONUITENT FOUND.HOUSE/GARAGE (2627) + DECK (48S) + STEPS (IS) + CONC (686) + LANDSCAPE (13) + ANTENNA (<1) + AC (6) = 3845 S.F. BATHHOUSE (20!) + DECK (41) + STEPS (52) ~ 302 S.F. a®®'oJH DEhkTTES IRON ITONUITENT SET HARKS? 'PLS 13620 * 17825".FISH CLEANING SHED (!00) + CONC (48) = 148 S.F. BAIT SHED (188) + CCNC (lO) = l<18 S.F. SHED (128) + STOiAGE SHED (240) + CONC (16) - 384 S.F. GAHE ROOT (55T) + CONC (508) = 1067 S.F.MATER SUSHING STATION (4) + HOBING TANK HASTE DISPOSAL (48) + FUS TANKS ON CONC (53) + FKCPANE TANK (25) = 130 S.F. BOAT LANDING (461) + GRAVEL (2T222) + LANDSCAPE (14) + CONC SIDEHALK * STEPS (321) + BOARDMALK (421) + MOOD STEPS (108) » 30,571 S.F. ® DSKTES tlAGNEnc RING MITH BRASS PLUG SET HARKED "PLS 13620 * 17825". DENOTES POMER/UGHT POLE BY VISIBLE OBSERVATION. DENOTES OVERHEAD ELECTRIC LINE BY VISIBLE OBSERVATION. D DENOTES MOOD DECK.T73 + 600 + 628 + 623 + 771 + 618 + 683 + 588 + 534 + 1875 + 3845 + 302 + 148 + 118 + 384 + 1067 + BO + 3057! = 44,538 AC DENOTES AIR CONDITIONER.44,538 + EXISTING PARKING f26 SPACES OUTSIDE OF EXISTING GRAVEL X (!0 X 20) =■ 41,738 STo denotes storage shed.41,738/307,011 = I6.2X IHPERVIOUS SURFACE TELA DENOTES TELE COniNUNICATIONS FED BY VISIBLE CBSERVATION. •' .~-S.-E 3^ VISIBLE OBSERVATION. OPERATING RESORT “ s I <-iSiBLE CeSERVATiON. OSI^L.BY HATER FRONTAGE - 1375/125 = // UNITS DENOTES MATER FLUSHING STATION.MFSEXISTING RESORT TIER I CALCULATIONS:M O DENOTES HELL BY VISIBLE OBSERVATION. TOTAL AREA IN TIER / = 303,56^! S.F.A PCV 12 DENOTES RECREATIONAL CAHPING VEHICLE POMER PEDESTAL. PRCV DENOTES PROPOSED RECREATIONAL CAHPING VEHICLE.TOTAL AREA EXCLUDING: DENOTES EXISTING CABIN.CABIN II. HETLANDS, BLUFFS, -13,347, -21,380 ROH OR BELOH ONHL -----1350----------TEN FOOT CONTOUR INTERVAL FROHSPOT ELEVATIONS AND LiDAR HAPPING.NET AREA = 268,842 S.F. BASE DENSITY OF DHELUNG UNITS = 268,842/80,000 = 3.36 DENOTES PROPOSED 60 x 40 RCV SITE MITH PARKING (2400 TOTAL S.F.).MAXIMUM ALLOHABLE DENSITY PER TIER = 3.36 x 1.5 = 5.04 TIER / NUMBER OF UNITS ALLOHED = 5 EXISTING UNITS = 10 CABINS, 8 RVC SITES, I HOME, EXISTING RESORT TIER THO CALCULATIONS ARE NEGLIGIBLE PROPOSED COMBINED PROPERTIES RESORT BY HATER FRONTAGE - 217+1375/125 = 12.7 UNITS PROPOSED RESORT TIER ! CALCULATIONS: TOTAL AREA IN TIER I ('303,56<=l + 146,915 + 13,207) = 463,69! S.F. TOTAL AREA EXCLUDING-- I. HETLANDS, BLUFFS, -38,915, -563, -21,380, -9,166, -2,837, -13,347 ROH OR BELOH OHHL NET AREA = 377,483 S.F. BASE DENSITY OF DHELUNG UNITS = 377,483/80,000 = 4.72 MAXIMUM ALLOHABLE DENSITY PER TIER = 4.72 x 1.5 = 7.08 TIER I NUMBER OF UNITS ALLOHED = 7 EXISTING UNITS = lO CABINS, 8 RVC SITES, / HOME, PROPOSED RESORT TIER 2 CALCULATIONS: TOTAL AREA IN TIER 2 = 120,221 S.F. TOTAL AREA EXCLUDING: I. HETLANDS, BLUFFS, -10,942, -!9,0<X), -6,184 ROH OR BELOH OHHL NET AREA = 84,005 S.F. BASE DENSITY OF DHELUNG UNITS = 84,0CB/I60,000 ^ 0.53 MAXIMUM ALLOHABLE DENSITY PER TIER = 0.53 x 1.5 = 0.79 TIER 2 NUMBER OF UNITS ALLOHED = O EXISTING UNITS = O PROPOSED CENTRALIZED DOCK MITH !2 SUPSCUP APPROVED BY THE OTTER TAIL COUNTY COHHISSIONERS ^ AT THEIR HAY 20, 2014 HEETING. " HICHABL MEI5HILLER PARCEL 14000^117008 I. HETLANDS, BLUFFS, -14,342, -38,915, -563, -9,166, -2,837, = 65,823!\ROH OR BELOH OHHL /NET AREA = 160,122 - 65,823 = 94,299 S.F. / /BASE DENSITY OF DHELLING UNITS = 94,299/80,000 = 1.18 MAXIMUM ALLOHABLE DENSITY PER TIER = 1.18 x 1.5 = 1.77 ('2 UNITS)/ NCKTH-SOUTN !/4 LINETIER I NUMBER OF UNITS ALLOHED = 2 SEC. 25-135-40PROPOSED UNITS IN TIER / = 4 TIER 2 CALCULATIONS: TOTAL AREA IN TIER 2 = 116,779 S.F. TOTAL AREA EXCLUDING: I. HETLANDS, BLUFFS, -7772, -25,274 = 33,046 ROH OR BELOH OHHL NET AREA = 116,779 - 33,046 = 83,733 S.F. BASE DENSITY OF DHELLING UNITS = 83,733/160,000 = 0.52SHIRLEY RA+mERG PARCEL I4000250I170I2 MAXIMUM ALLOWABLE DENSITY PER TIER = 0.52 x 1.5 = 0.79 O UNIT)SOUTH !/4 CORNER TIER 2 NUMBER OF UNITS ALLOHED = I SEC. 25-135-40 PROPOSED UNITS IN TIER 2 = 9\.y V OWNER OF NORTHERN UCHTS RESORT (APPUCANT) CHERYL AND VINCE PROSOSKIPRO'S PROPERTIES, LLC CERTIFICATE OF SURVEY FOR:35387 NORTHERN LIGHTS TRAILSURVEYOR'S CERTIFICATE RICHVILLE, tIN 56576 218-346-6046I hereby certify that this is a true end correct representation of a survey of the boundaries of the above described lend, end that this survey u/as prepared by under my direct supervision end that I em a duly Licensed Professional Lend Surveyor under the laws of the State of Himesota. Dated this 21st day of Hay, 2014. OWNER OF 6.3± ACRE TRACT CHERYL AND VINCE PROSOSKIme or (PROPERTY PROPOSING TO BE PURCHASED) PAULETTE JIMENEZLEGAL DESCRIPTION 201 BECKMORTH LANE EXISTm RESORT PROPERTY:IRMO, SC 21063%PART OF GOVERNMENT LOT 1 SECTION 25, TOMNSHIP 135, RANGE 40, OTTER TAIL COUNTY, MINNESOTA DEAD LAKE FIELD BOOKProfessional Land Surveyor DRANN BYCONTRACT NO.FOLDER Munesota License No. 17825 PARCEL ID NO.I4000250I1700I ALS-220/1GEH277-13277-13in ADDRESS = 35387 NORTHERN LIGHTS TRAILNDERSON LAND SURVEYING, INC.MD DEED DOC. NO. 1106774 FIELD CREWCHECKED BYCRD FILEDWG FILEPROPOSED PURCHASE PROPERTY:JAK PART OF GOVERNMENT LOTS 1 * lO LIB/GEH277-13277-I3BOAPROFESSIONAL lAND SURVEYORS & lAND DEVELOPMENT CONSULTANTS SECTION 25, TOMNSHIP 135, RANGE 40, OTTER TAIL CCHJNTY, MINNESOTA DRAWING NUMBERDEAD LAKE313 SOUTH MILL STREET. FERGUS FALLS, MN 56537 (218) 739-5268 REVISION:SEC-TWP-RGPARCEL ID NO. I4000250IT70II 7750BOi\/111 ADDRESS = NOT YET ASSIGNED(800) 300-9276 25-135-40PERSONAL REPRESENTATIVES DEED DOC. 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