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e' <br />Such questions are better left to courts of competent jurisdiction in a legal <br />action involving the interested parties should either party feel that it is appropriate <br />or necessary to have their respective rights adjudicated. <br />An additional claim of Mr. Runkle which warrants separate comment in this <br />memorandum is his assertion that the applicant cannot qualify for a variance because <br />he acquired the property after the LMCD code provisions were in place. He argues, <br />therefore, that the hardship is self-created. There is some precedent which is <br />supportive of this position in land use law. However, there is also a good deal of <br />precedent to the contrary. Under the LMCD code, the board is allocating among <br />riparian owners dockage rights over the public waters. It is not regulating the use <br />of private property under the authority of Minnesota Statutes, 1 462 357, subd. 6 <br />which applies to the granting of land use variances by cities. In many cases, the <br />hardships or practical difficulties which are the basis for granting variances under <br />LMCD Code Section 1.07 are simply the result of the fact that the LMCD has chosen, <br />as a matter of convenience, to use as a starting point for allocating dock rights <br />among riparian owners, an imaginary line created by extending the side property <br />line into the lake on a straight line from the point at which it meets the OHWM. Over <br />the years this has proven to work reasonably well in most cases. The obvious <br />advantage of this convention is that the lot lines can be readily determined by <br />survey. The determination of an authorized dock use area would be much more <br />difficult if the board had decided to use some other convention such as a line <br />perpendicular to the shoreline or a line extending to the center of the bay. <br />However, the stric'_ application of the cc-.., does not always result in a fair or <br />reasonable allocation of dock rights or allow riparian owners reasonable access to the <br />lake. Therefore, the board has found it appropriate to adjust dockage rights in <br />such cases through the granting of "v, inces" from the provisions of the code. <br />CLL63160 <br />LA110-4 <br />