The Minnesota DNR is appealing two Crow Wing County decisions to allow variances for an increased amount of permanent dock spaces on Clearwater Lake and Bay Lake.

“Our opinion is based on the shoreland rules and the county ordinance for planned unit developments,” said Lonnie Thomas, DNR area hydrologist based in Brainerd. Thomas covers Aitkin, Crow Wing and Pine counties.

Thomas said from 1992, when Crow Wing County adopted the state shoreland rules, until this year there had never been an appeal in Crow Wing County and now there are two in the space of a month’s time.

Part of the equation is a legislative change of the threshold to grant a variance from “hardship” to “practical difficulty.” The hardship standard was more difficult to reach while the practical difficulty has given the county more leeway to say yes.

In November, the county’s Board of Adjustment approved a variance request for the 30-unit Bay Lake Townhomes off Battle Point Road in Bay Lake Township.

In the Park at Clearwater Estates development on Clearwater Lake, the variance was approved for 10 permanent continuous mooring spaces on a common dock where four mooring spaces are allowed and no additional docks would be allowed for second tier development density. The township recommended approval. The DNR and a group of residents are both appealing the variance approval.

Paul Reuvers, attorney at Iverson Reuvers in Bloomington, is representing Crow Wing County for the appeal.

Reuvers said he thought it was important to note the Clearwater development was authorized to construct 14 units and agreed to forego ever building four more units and staying with 10. With the Clearwater Lake variance, a wing would be added to the existing dock and a day dock would be removed for a zero net gain.

“When you look at the scheme of things this variance made sense and this board made the right call on it,” Reuvers said, adding the board took a hard look at the variance request and determined it was reasonable. “We fully expect the court is going to reaffirm this.”

The Bay Lake development, which dates back to 1982, has 14 permanent continuous mooring spaces on a centralized dock. The Board of Adjustment approved a variance request to add 16 mooring spaces for a total of 30 for the townhomes. Thomas said the county’s land use ordinance permits six continuous mooring spaces. In this case, Bay Lake Township recommended denial.

Brainerd attorney Tom Fitzpatrick, representing the Bay Lake Townhome Association, said association members are seeking a single slip for each unit. At its closest, the townhome development is 260 feet from the lake and heavily screened by mature trees and natural vegetation. Thirty-five years before updated and current standards, Fitzpatrick said the Bay Lake development was already meeting standards aimed at protecting the environment.

Fitzpatrick said the association has been a good steward of the resources, retaining aquatic vegetation and putting in a simple dock. The association has 800 feet of lake frontage on about 33 acres.

“I don’t think there is any question they’ve been nice stewards and a good development,” Thomas said.

The Clearwater townhomes are located more than 500 feet from the lake.

Thomas said planned unit developments are typically given an increase in mooring sites compared to traditional development because they do incorporate conservation methods and the original 14 slips granted at Bay Lake recognized that as they were given maximum increases.

Fitzpatrick said the limitations for the PUD comes at the same time when individual property owners on the lake are unlimited in the amount of docks or boats they may have. On Bay Lake, Fitzpatrick said, of 19 miles of shoreline the PUDs on Bay Lake amount to about 1,000 feet of lake frontage. And Fitzpatrick said the townhome owners who do not have mooring slips are assessed the same as those who do, which doesn’t seem fair. In a variance process, which is designed to look at individual cases, Fitzpatrick said he is convinced a well-designed dock system would be a benefit.

In its motion to approve the Bay Lake Townhome request, the board of adjustment stated: no boat landing would be allowed on the property (which the development could have had under existing regulations to provide easier access to the lake but never did); dock design would be pre-approved and would not infringe on neighbors or create a navigational hazard; and the development would maintain the shoreland buffer. A day dock would also be eliminated.

In the BOAs finding of facts on both variance requests — to support its approval to vary from regulations in the county’s land use ordinance — it was noted more permanent boat slips would reduce the risk of spreading invasive species.

The issue of docks came up last year as the DNR worked to update shoreland and dock rules. Then Gov. Tim Pawlenty rejected those rules. Crow Wing County was awarded this year for its revision of shoreland rules, which incorporated DNR recommendations.

The DNR’s appeal has not been given a hearing date before a judge yet, meaning a decision may not be made until summer.

Thomas said this conflict could have been addressed if the rule process had gone forward and maybe it’s time the subject was reopened as counties make decisions on structures extending into the public waters. Public input from Minnesotans could then determine whether the DNR is right on not on size limits.