DULUTH- The developers behind a controversial renovation and expansion of Silver Rapids Resort may have surrendered their conditional use permit and preliminary plat, issued by Lake County back in September, but that hasn’t satisfied plaintiffs in two lawsuits against the proposed project.
Those differences were aired during oral arguments held Nov. 27 before Judge Eric Hylden in a Sixth District courthouse in Duluth. Defendants Silver Rapids and Lake County argued that the applications were no longer in existence, so the cases should be dismissed as moot.
The owners of the resort, saying they wanted to avoid a prolonged court fight, decided to surrender their permits and explore other options for their planned redevelopment of the site.
“(The) defendant is confident that the county’s approvals were properly issued but lacks the time to wait for the exhaustion of claims attacking those approvals. So, it surrendered those approvals … and intends to pursue a (different) course … by pursuing improvements allowed under existing rights or a scaled down project with fewer units.”
The developers returned the permits to Lake County on Oct. 21 and both the developers and Lake County filed motions nine days later asking Hylden to issue summary judgments to dismiss the cases as moot. Summary judgment is permissible when none of the parties dispute the facts of a case but differ on the legal interpretation of those facts.
The plaintiffs, however, argued against summary judgment, citing both factual disagreements and fears that a dismissal could prompt the defendants to break the law again. Community Advocates for Responsible Development, or CARD, and the Minnesota Department of Natural Resources, argued that dismissing the cases did not fix the underlying problem that Lake County allegedly disregarded its own ordinances by approving the applications, and should be subject to a writ of mandamus or a similar court order to prevent it from doing so again.
The issue of unit density for lodging is crucial to CARD and DNR’s arguments. CARD and DNR contend that Lake County should have followed its own shoreline land use ordinance for determining the permitted unit density, which would greatly reduce the number of new timeshare cabins at the renovated resort.
Instead, DNR argued, “Silver Rapids Resort states any future application … would be for a scaled down project with fewer units than were approved in the approvals; however, neither Silver Rapids Resort nor (even more importantly) the planning commission commit to following Lake County’s ordinances. The planning commission does not even concede Ordinance 9 [the shoreline land use ordinance] applies to its decision.”
DNR and CARD argue that Lake County must follow its shoreline ordinance, which it negotiated with the DNR back in 1995, for determining development density along shoreline. Lake County appears to be arguing, however, that it has discretion to use whatever density rules it feels are appropriate, like it did with the Silver Rapids approvals.
What’s more, the plaintiffs argued that while the developers may have surrendered their permits, they were still legally valid. They contended the surrender was “deficient” because the legal description of the property was missing and the surrender was not properly acknowledged or recorded by Lake County.
In response, Lake County and Silver Rapids executed a second surrender which was accepted, signed, and recorded on Nov. 19 to correct the deficiencies in the first surrender document.
Attorney Tom Torgerson, arguing for the developers, told Judge Hylden that now that the surrender was fixed, the legal dispute was now moot and that motions to dismiss were straightforward. He expressed some frustration over the plaintiffs’ wanting to pursue a decision against Lake County in the wake of the surrender.
“They have the win. Why don’t they go away?” he said.
Is it really moot?
Meanwhile, Peter Wenker, the lawyer representing the DNR, argued that facts in the case remain in dispute, which would prevent the issuance of summary judgment. In particular, Wenker said, the DNR and Lake County appear to disagree on how to interpret the density language contained in the county’s ordinance and in state rules. The DNR argued, further, that the surrender did not moot the planning commission’s approval of the resort’s applications because the surrender can’t erase the county’s “error of law” in not following its own ordinance.
CARD’s attorney argued that despite the surrender of the permits, Minnesota case law had established “mootness exceptions,” which includes circumstances where a defendant is seen as likely to repeat an action and could then be protected from judicial review. Both Lake County and the developers are asking the judge to dismiss the DNR’s and CARD’s claims with prejudice, which means the case is permanently closed and a plaintiff is prevented from filing the same claim in the future.
The danger of Lake County repeating its actions was clear, CARD stated, because Lake County, in its initial memorandum rebutting CARD’s motion for a writ of mandamus, “expressly states that the planning commission acted properly in ignoring Ordinance 9’s density maximums.”

Litigation prompted by county decision
The Nov. 27 court hearing stemmed from lawsuits filed in early October, both of which sought to overturn a conditional use permit and a preliminary plat authorizing a planned redevelopment of the Silver Rapids property. Local opponents to the approved project organized as Community Advocates for Responsible Development, or CARD. The group filed suit against Lake County on Oct. 2.
The DNR filed its own suit against both Lake County and the developers the following day, on similar grounds.
Both lawsuits argued that Lake County violated the law regarding the permitted density of units. Because the suits are similar, the Nov. 27 hearing considered motions for both, even though they have not been consolidated.
Judge Hylden promised to issue a decision sometime in mid-December.