REGIONAL- Three individuals seeking a permit for a new Lake Vermilion campground on Black Bay have filed suit alleging their proposal didn’t get a proper procedural review from the St. Louis County Planning Commission last spring. Developer Christine Wyrobek, who says she plans to cater to disabled veterans at her proposed campground, along with two fellow plaintiffs, are asking a St. Louis County district court to grant approval of rezoning and the conditional use permit (CUP) for the campground.
The lawsuit was filed four months after the Planning Commission denied Wyrobek’s rezoning request, on behalf of Wyrobek and Lance and Kari Kuhn, owners of one of the parcels in question. The suit contends that the Planning Commission failed to act on Wyrobek’s applications within the 60-day time frame required by state law, specifically Minnesota Statute 15.99. The lawsuit faults the commission’s rationale for rejecting the project and addresses other procedures that were allegedly not executed correctly.
The campground, Rough-N-It, a nonprofit organization, was proposed as a 47-site tent campground located on approximately 45 acres of undeveloped, water-access only property, with two small mainland parcels totaling approximately .64 acres to be used for parking and staging. The properties in question are currently zoned as Residential-5 and Residential-7, which does not allow for commercial planned developments like the campground. Wyrobek was requesting reclassification of the properties to Shoreland Multiple Use-5 and 7. Wyrobek submitted the original rezoning and CUP requests on or about Feb. 2, and a hearing was scheduled for March 9.
However, after receiving a copy of the commission staff report compiled for the project, Wyrobek asserted that the report contained incorrect information about the properties and proposed uses and withdrew both applications from consideration at the March 3 meeting of the planning commission. Wyrobek filed new updated applications for rezoning and the CUP, which are also dated March 3.
On March 20, St. Louis County Planning Manager Jenny Bourbonais received an email from the Minnesota Environmental Quality Board (EQB) informing her that a petition had been received that day requesting that an Environmental Assessment Worksheet be prepared for the project. The email notes that “a project may not be started, and a final governmental decision may not be made to grant a permit, approve a project, or begin a project until a decision has been made for this petition. Project construction includes any activities which directly affect the environment, including preparation of land.”
The petition, signed by about 170 people, claimed that the campground project had potential negative consequences for water quality and wildlife habitat, as well as generating noise and light pollution, garbage and ecological “vandalism.”
The EQB communication indicated that the Planning Commission had 15 days to determine the need for an EAW. Bourbonais responded requesting an additional 15 days as the commission was not scheduled to meet again until April 13.
In a March 21 email to Planning Department staff Wyrobek submitted supplemental information for her applications and volunteered to do the EAW. At that point, the commission had not discussed the EAW petition or decided an EAW was necessary. Wyrobek also indicated her desire that both the rezoning and CUP applications be heard together. According to correspondence included in Wyrobek’s court filing, Bourbonais informed Wyrobek that the commission could not hear the CUP campground proposal at the April meeting due to the pending EAW request, and that if she wanted both the rezoning request and CUP heard on the same day it could not be until after the EAW was acted upon. The rezoning request was scheduled for the April 13 commission meeting.
However, the meeting minutes for April 13 indicate that Wyrobek was not in attendance and the rezoning application was not heard at her request (a point the lawsuit contests). Bourbonais stated that due to a typographical error in the meeting notice sent to Wyrobek stating that the hearing time would be at 10:15 p.m. instead of 10:15 a.m., Wyrobek requested that the hearing be tabled until she was able to appear before the Planning Commission. The commission rescheduled the hearing for May 11.
The April 13 minutes also do not contain any reference to the EAW petition being discussed or acted upon, although the meeting agenda included “EAW Petition Discussion” under other business.
The Planning Commission reviewed Wyrobek’s rezoning request at its May 11 meeting and voted 7-1 to deny it, noting the plan was inconsistent with the county’s land use plan and would constitute spot zoning, without any public benefit.
As the rezoning request was denied, the county took no further action on the CUP.
Irregularities alleged
On Oct. 4, County Attorney Kimberly Maki and Assistant County Attorney Nathan LaCoursiere filed a point-by-point answer to the lawsuit filed by Wyrobek and the Kuhns.
Of primary importance is the allegation that the Planning Commission did not act on Wyrobek’s applications in the required 60-day time frame. In fact, the time from the March 3 date of Wyrobek’s revised applications to the May 11 denial of the zoning is 70 days, including May 11. The lawsuit contends that exceeding the 60 days for acting on the rezoning and CUP applications means that they “are approved as a matter of state law” under state statutes. With such approval, Wyrobek would be able to proceed with development of the campground.
The county attorney acknowledges that it was more than 60 days before the commission acted but claims that fact “is of no legal significance” because the timeline was “tolled,” meaning paused or delayed, according to other relevant state law. The March 20 filing for an EAW should also be considered as something modifying the timeline. The county also contends that action at the April 13 was delayed at the request of Wyrobek’s attorney, and therefore the subsequent delay cannot be claimed as a basis for automatic approval.
The county’s response emphasizes the uncompleted environmental worksheet. Beside resetting the timeline for “60 days after completion of the last process required” under the statute cited by Wyrobek’s attorney, the county is specifically prohibited from acting on the applications until the EAW process is completed. The county also argues that exceeding the 60-day period does not automatically approve the applications because another court decision found that statute cannot exceed the scope of the county’s authority under state law, which in this case is restricted by the EAW requirements.
The county’s answer to the lawsuit denies any right of injunctive relief for Wyrobek or the Kuhs, stating that the complaint fails to state a claim upon which relief can be granted.
The county further asserts that the Planning Commission can’t be sued, and that the district court lacks jurisdiction in the matter.
Hitting reset
In its court filing and in the minutes of the Nov. 9 Planning Commission meeting, it’s evident that the county considers the rezoning and CUP applications as matters that are still open.
Nick Campanario, St. Louis County Attorney’s Office Civil Division Head, reminded the commission that it is not the final say on rezoning applications. The commission can only make a recommendation to the Board of Commissioners, which can choose to accept or reject the recommendation.
Campanario said that the county attorney’s office decided to restart the process and go through it as it is intended to be done. That means having the Planning Commission first consider the EAW petition, which it did at the Nov. 9 meeting.
Wyrobek was on hand, asking the commission to deny the petition until litigation is complete and they have an actual plan for the completion of the campground, which would affect the completion of an EAW.
She also gave numerous reasons why tent sites that have been developed and used on the proposed campground don’t violate the EQB’s prohibition against any development until the EAW petition is acted upon. The four parcels Wyrobek owns have been developed as individual dwelling sites, with a campsite being a dwelling site. Using definitions for residential use-class I and primitive campgrounds, Wyrobek explained her position that this type of development did not defy the Planning Commission. She also described seven exceptions to the EAW requirement and noted that the current petition contains an inaccurate description of the property, inflating the area by over 100 percent. She estimated the EAW would cost $10,000 and said she would do it herself, although she has already spent more than $30,000 trying to correct the problems with the process.
Numerous attendees offered comments both pro and con for the EAW, and discussion of numerous angles by commissioners was lengthy. In the end the Planning Commission voted 7-0, to request that an EAW be performed, setting the stage for possible future actions on the rezoning and CUP issues.