DNR Influence in Local Decision-making: Could MN Supreme Court Ruling Have Local Impact?

While most readers were focused on the Governor's State of the State address in last Friday's (2/12/10) Star Tribune, I was interested in another story that addressed development along the St. Croix River.

The Minnesota supreme Court sided with the City of Lakeland and the property owner in a variance request that had been approved by the city. The MN DNR had opposed the variance request. The court ruled that " the state agency (MN DNR) had no authority to deny Lakeland's approval of a "setback variance" governing how (Ron) Hubbard would build his house."

"We've pushed this because we've seen so many people bullied up and down the river by the DNR," Hubbard said. "Most people can't afford to fight them."

The DNR has weighed in on a similar issue in Bemidji. The Edgewater Group has requested an amendment to the South Shore Planned Unit Development (PUD). It includes a variance to the setback on the Group's property. The amendment is needed because the development proposes buildings that connect across property lines that are outside the PUD. The amendment will bring all the properties into the PUD. (The entire South Shore Development Plan and Guidelines can be downloaded by section here.)

The Planning Commission recommended approval of the change in January; it was sent to the Joint Planning Board and heard at their February 10th meeting. In between the two meetings, the local DNR sent a letter opposing the change and threatened legal action against the JPB if they approve the variance. The Board postponed their decision to February 25th so their legal council could respond.

The proposal for the PUD amendment was worked out jointly among the developer, JPB staff and City staff after consultation with both the city's and JPB's legal advisers. It represents a reasonable and responsible approach to the proposed development that respects the spirit and intent of the current PUD.

No one can envision all of the potential scenarios that might occur during development and the current dilemma could not have been predicted. But that is why the zoning ordinance, unlike the rest of our laws, has a built-in process for change. Namely, the variance and amendment processes.

State enabling law vests local jurisdictions with the ability to create and administer local zoning regulations. The DNR has jurisdiction over public waters that extends to the shoreland through the state shoreland regulations. However, local staff, planning commission members and policy-makers--the JPB, in this case--should have the ability to thoughtfully assess the merits of local projects and "vary" the rules without the heavy-handed intrusion of the DNR. Apparently, the MN Supreme Court thinks so too.