HomeMy WebLinkAbout1994-02-03 Memo, LMCD Justification for Ruling• `M
LAKE MINNETONKA CONSERVATION DISTRICT
In Re: Application of Michael Revier
MEMORANDUM
In the above referenced case, the owner of the property adjacent to the
applicant's parcel to the north, Mr. David Runkle, objected to the granting of the
variance for a number of reasons. The board has chosen to address two of these
issues in this memorandum. Try first of these arguments raised by Mr. Runkle is
that the applicant does noL have the legal right to construct the docks cver the
extznded lot line between the Revier and the Runkle properties on land which is
under water below the ordinary high water mark.
Although land between the ordinary high water mark (OHWM) and t: ie ordinary
low water mark (OLWM) may be privately owned, the board is not aware that the
OLWM has ever been determined for Lake Minnetonka. Without such a determination,
it would not be possible to evaluate the merits of Mr. Runkle's claim beeiiuse the land
below the OLWM is owned by the state of Minnesota and cannot be privately owned.
Moreover, the between the OHWM and ( ' ' 'M, the use of private property is subject
to reasunable regulation by uth .y. Whether allocating lake access among
riparian owners may constiti. ,t reasonable regulation has not been determined.
In any case, the board must decline to decide the case on the basis of this claim for
both legal and practical reasons. Legally, the board has Ti,-- authority to adjudicate
adverse claims to real property. Because the board has no legal authority, it would
make little sense as a pre--tical matter for the board to attempt to decide the issl+e on
the basis o" 's opinion about real property interests of tY tar ies. Any decision
made on ti. _ -.eis of the board's findings on real proper+•- rests would properly
be subject to challenge by either of the parties, and the board would be placed in the
position of attempting to defend private real property rights of one citizen against
the adverse claims of another.
CLL61160
LR110-4
e'
Such questions are better left to courts of competent jurisdiction in a legal
action involving the interested parties should either party feel that it is appropriate
or necessary to have their respective rights adjudicated.
An additional claim of Mr. Runkle which warrants separate comment in this
memorandum is his assertion that the applicant cannot qualify for a variance because
he acquired the property after the LMCD code provisions were in place. He argues,
therefore, that the hardship is self-created. There is some precedent which is
supportive of this position in land use law. However, there is also a good deal of
precedent to the contrary. Under the LMCD code, the board is allocating among
riparian owners dockage rights over the public waters. It is not regulating the use
of private property under the authority of Minnesota Statutes, 1 462 357, subd. 6
which applies to the granting of land use variances by cities. In many cases, the
hardships or practical difficulties which are the basis for granting variances under
LMCD Code Section 1.07 are simply the result of the fact that the LMCD has chosen,
as a matter of convenience, to use as a starting point for allocating dock rights
among riparian owners, an imaginary line created by extending the side property
line into the lake on a straight line from the point at which it meets the OHWM. Over
the years this has proven to work reasonably well in most cases. The obvious
advantage of this convention is that the lot lines can be readily determined by
survey. The determination of an authorized dock use area would be much more
difficult if the board had decided to use some other convention such as a line
perpendicular to the shoreline or a line extending to the center of the bay.
However, the stric'_ application of the cc-.., does not always result in a fair or
reasonable allocation of dock rights or allow riparian owners reasonable access to the
lake. Therefore, the board has found it appropriate to adjust dockage rights in
such cases through the granting of "v, inces" from the provisions of the code.
CLL63160
LA110-4
If there are hardships or practical difficulties relating to the dockaka rights
of a given parcel of riparian property and a variance is appropriate under the code,
'he board does not feel that it is appropriate to refuse to grant reasonable dockage
rights to that same parcel merely on the ground that the ownership of the property
has changed hands. In other words, if granting a variance is appropriate under the
facts of any given case on the day before a transfer of title, it will generally be
appropriate on the day after title is transferred as well. The board has not declined
to grant variances in the past on the ground that a transfer of title creates an
improper "self-created" hardship, and it does not find that it is appropriate to do
so in this case.
CLL63160
LK110-•