Lake County may face lawsuit over Silver Rapids CUP

FALL LAKE TWP- The Minnesota Department of Natural Resources is threatening possible legal action against Lake County unless county officials reconsider their recent approval of a conditional use permit allowing a major redevelopment at the Silver Rapids Resort property.
Katie Smith, director of DNR’s ecological and water resources division, in a Sept. 13 letter to Lake County Commissioners, claims the county used the wrong standard to calculate allowable unit density at the resort and asks for a reevaluation of the project.
“Absent these changes, the DNR understands that it has thirty days from the Sept. 6… to appeal the Planning Commission’s decision to the district court,” Smith states in her letter.
Smith concluded that her agency would prefer to work with the county “to bring the development into conformance” rather than to seek a solution through the legal system.
Previous correspondence
The letter from Smith should have come as no surprise to Lake County officials. Email correspondence between DNR and Lake County officials on the Silver Rapids project, which was obtained this week by the Timberjay, shows communication of DNR concerns dating back at least to early August. Those communications culminated in a Sept. 4 email from Danielle Braund, a DNR hydrologist. In it, Braund told Tanya Feldkamp, assistant director of Lake County Environmental Services, that the Silver Rapids proposal, as presented, “deviates significantly from the county’s ordinance limits on number of units and the number of mooring spaces.” Braund said the county ordinance, developed in the mid-1990s with DNR input and support, currently “allows 16 units in the first tier and 33 units in the second tier.”
Later that same day, despite the DNR’s expressed concerns, the county’s planning commission approved a conditional use permit that calls for 33 units in the resort’s tier one setback zone closest to the lakeshore, and the 29 units in its tier two setback zone.
Braund also expressed concern about the number of mooring spaces, noting that the county ordinance would allow for just 16 mooring spaces, since it limits those spaces to one for every housing unit in the first tier. That issue is likely to require DNR permitting, so any county action on the question likely won’t be the final word.
The timing and nature of the DNR correspondence with Lake County officials raises troubling questions about what county officials knew when they approved the CUP on Sept. 4. It appears that county officials did not reveal the DNR concerns publicly, either at the Sept. 4 meeting or during earlier meetings on the Silver Rapids proposal. What is less clear is whether county planning staff revealed the agency’s objections to members of the county’s planning commission before they approved the CUP that state officials believe violated the county’s own rules.
The Timberjay asked Christine McCarthy, director of Lake County Environmental Services, when planning commission members first learned of the DNR’s concerns over the project.
“I can’t answer that at this time,” McCarthy responded. “Because there are people talking about appealing (the approval of the applications), I don’t have the authority to talk about this without consulting the county’s attorney. We’re not trying to hide anything, but because of the legal situation, I have to follow this procedure.”
Rare fish also at issue
DNR concerns about the impact of the development on a rare species of fish, known as the longear sunfish, never came up in county discussions on the proposal, either. In the Sept. 4 email, Braund noted White Iron Lake is home to the rare sunfish, and Farm Lake contains protected waters for northern pike and walleye. “Increasing the number of structures and mooring facilities outside of what is allowable by ordinance would put pressures on the shoreline stability and aquatic environment of White Iron and Farm Lake,” Braund wrote.
Ordinance history
In her Sept. 13 letter, Smith outlined her reasoning, starting with the history of Lake County’s PUD ordinance. She noted that Lake County had expressed its concerns with the DNR’s commercial PUD regulations, with the county finding the DNR’s standards: “Too restrictive in some areas and too permissive in others.” After negotiating, the DNR and the county came to an agreement in 1995 on a set of PUD rules which reflected “The character and environmental values of the area.”
Smith went on to state that the county should have used those negotiated standards, now part of Lake County’s ordinances, and not DNR’s more lenient commercial PUD regulations. She further wrote, “Even if the statewide commercial PUD standards were applicable, which they are not, the density calculations would only permit 48 units in total.”