Land-use issues put Cook County Board of Adjustment in public’s eye

Several recent decisions by the Cook County Board of Adjustment have left some community members puzzled, while others might have wondered a more basic question: What is the board of adjustment?

In short, the board of adjustment has the authority to approve or deny a Cook County property owner’s request for a variance from the local zoning ordinance. The board is made of community members who submit an application and basically apply for the position, which is reviewed by the Cook County commissioners, who then appoint people to the board.

All of Minnesota’s 87 counties have a board of adjustment and are required to do so under state statute. In Cook County, members of the board of adjustment get $30 per meeting, plus 58 cents for mileage reimbursement for any work specific to the board’s decision-making process, including site visits.

In a broad sense, the local board of adjustment acts as a judicial board as opposed to a governing body. It has the exclusive authority to make final decisions for granting or denying a property owner’s request for a variance from the zoning ordinance.

This authority means any decisions made by the board of adjustment do not need final approval from the Cook County Board of Commissioners. This is different from the planning commission, a similarly structured committee that has the authority to review and make recommendations on situations concerning zoning, conditional use permits, ordinance modifications and various land-use issues.

Most of the decisions the planning commission and the board of adjustment make are rather mundane. Two recent decisions, however, have thrust the board of adjustment into the public eye. The decisions call into question both the subjective nature by which the board is allowed to make decisions, and in how the board itself functions.

Take, for example, the action the board took Jan. 12 to allow a member of the Minnesota House of Representatives to keep a noncompliant structure near the shoreline of Poplar Lake. The situation involves Republican state Rep. Erik Mortensen and his family’s request to keep a recently built structure in place, even though the building violates the county’s land ordinance. Mortensen also violated a cease-and-desist order issued by the county in 2021 as the process was unfolding.

The Cook County Board of Adjustment voted 3-2 during their first meeting of 2022 to allow Mortensen to keep his structure, despite numerous conversations over the course of multiple meetings in 2021 where members of the board of adjustment openly acknowledged the structure violates county ordinances.

The board members who voted to allow the structure to remain in place were Jerry Hiniker, Charlie LaBoda and Adam Treeful. Voting against the request were Keith Kuckler and Judy Motschenbacher.

And while the Mortensen case generated a significant amount of community concern both during and after the ruling, it is not the only example of action taken by the board of adjustment during recent months to raise eyebrows.

During the meeting of the board of adjustment from Dec. 15 of last year, a variance was considered regarding a property owner near Lutsen who submitted a request to expand a non-conforming cabin on his property at 3876 Cascade Beach Road. The property is owned by Stephan Helgeson. Prior to discussing the request during the December meeting, Treeful recused himself from voting on the issue, citing a potential conflict of interest, as his employer has done work on the property.

After discussing the issue at length, board members Kuckler and Motschenbacher were against the measure, as it did not fit within the county’s land-use plan. Likewise, Helgeson did not prove a ‘practical difficulty’ for why he should be granted a variance.

According to state statute, this tool, which is essentially subjective by its very definition, states that: “Practical difficulties, as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner.”

Kuckler and Motschenbacher were opposed to the request from Helgeson. Hiniker, who serves as the board chair, and LaBoda, were in favor of granting the variance.

After the vote appeared to stall at a 2-2 vote, Hiniker then suggested Treeful should ‘unrecuse’ himself from the vote so that an outcome could be determined by a simple majority. This request came despite Treeful’s earlier statement that he should not vote due to a conflict of interest. After a discussion on the criteria for conflict of interest, Hiniker asked Treeful to withdraw his refusal, which he did. Treeful then joined the supporting votes and it passed 3-2.

These recent decisions illustrate varying degrees of how the local board of adjustment is allowed to operate and make land-use decisions in Cook County.

Land Services Director Tim Nelson said the political times the nation finds itself in could be seeping into how some residents view the board of adjustment.

“We’re a little bit of a microcosm of how the country is working,” Nelson said. “In the same decision we can be called ‘fascists’ and we’re denying people the use of their property, and we’re letting people get away with whatever they want to do. We’ve been called the same thing after a single decision. There’s no singularity of thought with this. It’s making almost every decision more and more difficult for these boards, and it does make it more difficult to find people that actually want to serve, because they get criticized in terms of the decisions that are made.”

WTIP spoke with multiple current and past members of the board of adjustment for this story. A common theme in these discussions is that the subjective nature by which the board is allowed to operate has a tendency to stir controversy.

Stan Tull was a member of the board of adjustment from 2014 to 2018. He resigned abruptly in 2018 due to a number of what he called “frustrations” with the board and the county.

“After years of being on the planning and zoning board and the board of adjustment, my frustrations increased with the management issues of land services and the difficulty of completing a board and having a full board constant,” he said. “And I was frustrated with the fact that people would get a variance and then that was carte blanche for people to build whatever they wanted, however they wanted, and there was no real enforcement after the fact of that.”

Tull said the Mortensen case is a perfect example of how the board can make subjective decisions that don’t appear to follow the rule of law.

“There’s a lot of personal opinions that get involved in these decisions,” Tull said. “And there’s no place for that, it shouldn’t be there.”

The Mortensen case also drew the ire of some business owners and community members from the Gunflint Trail and other areas of the county. Among them is Doug Seim, a licensed contractor who lives in the Hovland area. Seim said land-use permits or variances are something local builders are required to obtain for most projects, and the process is something contractors take very seriously.

“We just all know, and are expected to know what the rules are,” Seim said. “And if we don’t know them, we don’t go anywhere but to the courthouse itself and to the office that’s involved.”

During the Jan. 12 meeting, Mortensen was present in the courthouse as his case was being reviewed by the board of adjustment. In that meeting and in written documents submitted to the county he made repeated claims that he believed he was building a structure that was allowed under the county zoning ordinance. He also claimed he believed he did not need a permit for the structure. Seim said it is the responsibility of anyone building in Cook County to be familiar with the requirements and ordinances in place.

Regardless, Seim said ignorance of the law is not grounds to break the law.

“If you assault somebody, and you get arrested, you can’t say ‘Well, I didn’t know there was a law against assaulting someone,’” Seim said. “That doesn’t work. We have these ordinances to protect the resources.”

Seim also voiced frustration with the fact that Mortensen received a cease and desist order, continued to build afterward and was still allowed to keep the structure in place.

“There has to be consequences for that,” Seim said.

Nelson said Mortensen ended up paying $1,200 in fines and permit fees in order to keep his structure in place.

Any legal action regarding the cease-and-desist order issued to Mortensen would need to come from the county attorney’s office, according to Kuckler, a member of the board of adjustment. The county attorney declined to pursue any charges against Mortensen for violating that order, Kuckler said.

WTIP reached out to Cook County Attorney Molly Hicken with questions about the Mortensen case. She declined to comment.

Meanwhile, Nelson said the members of the board of adjustment and the others appointed to the planning commission will receive special training this month to assist with their understanding of how these boards are designed to function. Nelson said a specialized land use attorney will be in Cook County Feb. 18 to educate those appointed to the board of adjustment and planning commission.

As more residents become familiar with what the board of adjustment is and how it functions, it will be important to “respect the integrity of the process,” Nelson said.

“One of the things we did benefit from in that Mortensen case is that there was a lot of discussion,” he said. “There was a lot of agreement and disagreement and going back and forth, and what that demonstrates is that the members were engaged and there was a lot of actual deliberative thought about this and it wasn’t just an off-the-cuff kind of a decision, it was one that did take some serious thought. It surprised me that it actually ended the way that it did, but that’s the way that it went.”

Joe Friedrichs February 6, 2022