Wednesday, February 25, 2009

Response to Questions of the Week

Thanks to the 30+ folks who took the time to complete the survey that was posted in response to the D.N.R.'s Questions of the week. I compiled the responses and submitted them to the D.N.R. for inclusion in the official record of the Private Structures in Public Waters Advisory Group.

I also submitted a response on behalf of P.O.P.U.A.R. It appears below.

Finally, the D.N.R. questioned my so-called "cheap shot" at the person designated as the Advisory Group's representative of the real estate industry in my February 15th blog report on the February 12th meeting of the Advisory Group. I did not identify the person by name then; I won't do so now. My criticism of the person's narrow point of view while accepting the responsibility of representing all realtors in Minnesota who sell lakeshore property was not meant as a cheap shot. However, in retrospect, to be 100% accurate, I should have referred to the person as the only realtor with whom I have spoken in the past year about the issue who does not see a correlation between D.N.R. regulations and lakeshore property values. I apologize for the broader language contained in the February 15th blog and for any angst the perceived exaggeration caused. I also renew my call for the appointment of someone in the real estate industry with a broader point of view to the Advisory Board.

Here's the memo responding to the Questions of the Week:

M e m o r a n d u m

To: D.N.R. Private Structures Advisory Group/Erika Rivers
From: Sam Stern, P.O.P.U.L.A.R.
Date: February 25, 2009
Re: Response to First “Question of the Week”


Before I get into detail on the responses I have to the Question of the Week, I’d like to share an analogy with the Advisory Group that might illustrate why answering the questions posed such difficulty. As you read this, keep in mind that we are all acting in a fiduciary, as well as representative, capacity as Advisory Group members. Accordingly, we should not be engaging in absolutes (e.g., “no limitations under any circumstances” on one end; “no modification of wilderness status” on the other). Therefore, the ability to intelligently answer any questions depends to a large degree on the context in which the question is being asked. Here’s the analogy:

Imagine that instead of discussing private structures on public waters, we have been asked to design an airplane for a courier service that operates out of Lindbergh International Airport, Holman Field, Flying Cloud Airport and the farmer’s airstrip near me in Maple Plain.

Imagine we were asked the following Questions of the Week (they are not intended to correlate to our actual questions):
a. How long should the runway be in order to safely take off from the airport?
b. Should the airplane be allowed to use the entire runway before lift off?
c. How long should the wingspan be on the airplane?
d. How much cargo should each flight be allowed to carry?

Remember, our mission is to design an airplane. Before we can intelligently answer any of the questions, each of which in their own context asks for relevant information, we need the answers to other questions.

a. You cannot answer the first question unless you know how large the airplane is going to be. If the courier service is going to continue to operate out of all four venues, then the Advisory Group would need to either recommend different sized airplanes for the different airports or that the one airplane being designed be small enough to be able to take off and land in the most restrictive environment.

b. You cannot answer the second question unless you are familiar with the configuration of respective airports. I believe that Lindbergh is engineered to allow the use of nearly the entire runway when necessary. Using the entire runway in the farmer’s field in Maple Plain would put the airplane perilously close to County Road 83 and to power lines.

c. You cannot answer the third question until you have some idea of the size of the airplane being designed, including its cargo capacity and its desired range and whether it will be powered by jet engines or by propellers. Space limitations at the airport would also have to be considered before the question could be answered intelligently.

d. You cannot answer the fourth question until you have some idea of the capacities of the airports. Runway length and construction will determine how much cargo can be carried. Also, you need to come up with a design before you can put a limit on cargo. A C-130 should be allowed to carry more than a Piper Cub. However, getting back to (a), if the Advisory Group is only supposed to come up with one design that all four airports can accommodate, it will necessary to design on the small side.

If a member of the Airplane Design Advisory Group came to the table with a pre-conceived notion that air transport is a bad idea, that jet engines are too noisy and harm the environment and that any new airplane should have no more than minimal impact, then I suppose it would be possible to answer the four questions without regard to the variables that make a more impartial consideration possible. However, doing so would violate the fiduciary responsibilities to the courier service assumed by agreeing to sit on a committee formed to deliberate and advise.

I fear that the Private Structures Advisory Group is being put in the same position as my analogy. We are being asked to answer questions about shoreline impact without a clear understanding of the goals we are striving to achieve. We have yet to see a Statement of Need and Reasonableness. Therefore, no one has been shown the “need” for any new regulations (other than a legislative mandate that arose solely out of concern for the size of dock platforms). No one has demonstrated the “reasonableness” of various degrees of regulation. As in my analogy, it would not be reasonable to submit a design for a twin of the Boeing 747 if the courier service depended on the farmer’s field in Maple Plain to operate. And consider how your answers to the questions in the analogy might be further affected by the knowledge that the courier company only serviced the Twin Cities metropolitan area, making the use of anything but the smallest of planes a silly alternative to trucking.

With that as background, and with the fervent request that the Private Structures Advisory Group be furnished with necessary contextual information in which to deliberate in the future, here are P.O.P.U.L.A.R.’s responses to the Questions of the Week.


1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc? It is impossible to provide a “one size fits all” answer to this question. Many P.O.P.U.L.A.R. members who answered this question in surveys conducted online and provided to the D.N.R. identified a specific number based on their own experience. However, thinking more globally, the length of shoreline “needed” depends on specific shoreline topography, specific historic lawful use of the shoreline and the resulting utilization of various forms of private structures and watercraft, family size and other demographics, including health considerations.

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions? Since Shoreland Management rules being updated and aquatic plant management rules will necessarily impact the placement of private structures along riparian property owners’ shoreline, there is no need for new Private Structures in Public Waters rules to further restrict the length of aquatic impact. The State has to recognize that in instances where lakeshore property owners have more narrow shorelines, restrictions beyond those imposed by Shoreline Management and APM will render the property nearly unusable. In instances where lakeshore property owners have opted to purchase longer expanses of shoreline to meet their particular needs, they should be allowed, subject to Shoreline Management and APM rules, to enjoy the benefit of their bargain.

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed? There is no need for the impacted space to be continuous. As before, there is not one approach that reasonably fits all uses. Some lakeshore property owners purchased lots with longer shorelines precisely because they wanted to separate different uses of their property, often out of concern for safety. It is difficult to answer this question without have a sense of what the allowable aquatic impact length will be. For example, if the allowed length is limited to 30 feet (Heaven forbid), it is unlikely that, on a 60 foot wide lot there would be room for meaningful separation of the zones given required setbacks from lot lines.

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?) As indicated by a number of P.O.P.U.L.A.R. members who responded to this question in the survey, it is not clear what is being asked. Having said that, as a general rule, any measurement criteria should be narrowly construed so that areas not actually impacted are not included in the width of the zone. With respect to “maneuvering room” being included, the mere suggestion is an affront to any concept of fairness. As we have been reminded ad nauseum, the public waters are available to everyone. Why would we even consider imposing effectively more restrictive conditions on riparian property owners by limiting their ability to maneuver in public waters for fear of having a larger portion of the public waters be included in their overall aquatic impact zone?

Sunday, February 22, 2009

D.N.R.'s "Questions of the Week" aka "Putting the Skier before the Boat"

The Private Structures Advisory Group has been asked by the D.N.R. to respond to the first in a series of "Questions of the Week". While under some circumstances, this might prove to be a useful tool to identify areas of agreement (and disagreement) among Group members, I have serious concerns about the timing of posing these questions and expecting meaningful responses.

As I indicated last week, we have yet to see the proposed Statement of Need and Reasonableness (SONAR) required to justify any rule-making. Answering the Questions of the Week outside of the context of a SONAR makes little sense to me.

Here are the questions.

1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc?

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions?

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed?

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?)

Here's the problem. The answers to the questions depend entirely on the goals sought to be achieved by new rules and the goals should depend on the need to make changes in current rules. Without a SONAR, the responses to the Questions of the Week could amount to nothing more than irrelevant opinions. For example, the answers to the questions should be dramatically different depending on whether rules are needed to (i.) maintain the status quo with respect to aggregate human impact on aquatic plant life and fish or (ii.) return all lakes in the State of Minnesota to wilderness status in order to protect the biological environments. Also, since the "R" in SONAR stands for "reasonableness", it is impossible to determine the reasonableness of a proposed rule independently of knowing what the goal is trying to achieve.

There is no need for me to suffer alone in trying to respond to the Questions of the week. PLEASE take the time to give me your thoughts on the Questions of the Week by clicking the link at the end of this paragraph. I will make sure P.O.P.U.L.A.R. members' responses are incorporated into my official response. Because of the deadline to respond by 4:00 p.m. on Wednesday, February 25, I need your input on our survey by 10:00 a.m. on the 25th. Click here to take the survey.

Thanks for your support.

Sunday, February 15, 2009

Report on the Feb 12 DNR Advisory Group Meeting

The second meeting of the Private Structures Advisory Group took place on February 12th. As was the case with the first meeting in January, P.O.P.U.L.A.R. was the primary voice arguing against more restrictive D.N.R. regulations of private structures on public waters.

In addition to P.O.P.U.L.A.R., Dan VanderMey of FLOE International spoke up for the dock industry. There was no representative of the marine industry at Thursday’s meeting. The representative of the real estate industry, who P.O.P.U.L.A.R. expected would support concerns about the impact of regulations on property values, was more concerned with limiting colorful boat canopies across the lake from properties she was listing.

Fortunately, Bruce and Julie Larson and Rob Birkeland attended the meeting as public observers and provided input to the Advisory Group during the public comment period at the end. I have asked Tom Hovey, who oversees the Advisory Group at the D.N.R. to appoint Bruce Larson to the Advisory Group in order to assure that the only real estate representative on the Advisory Group is not also the only real estate agent in Minnesota who doesn’t see any correlation between D.N.R. regulations and lakeshore property values.

Before I get into what transpired at the meeting last Thursday, here’s what did not happen.
  • The draft of the Statement Of Need And Reasonableness (SONAR), required as part of any rulemaking was not discussed. It is still being worked on and will be submitted to the Advisory Group before the March meeting. The document is critical because it identifies for an administrative law judge the concerns that allegedly justify modifying regulations in the first place. If there is no legitimate need, there should be no rulemaking.
  • The group did not discuss the parameters of a General Permit that would be used to incorporate most current uses of private structures. Rather, Julie Ekman, who heads up D.N.R. Waters permitting, explained that the D.N.R. believed that the rules themselves would identify private structures that did not need any permit. The problem with this approach is two-fold:
  1. On a procedural basis, it contradicts the decision of the Advisory Group, actually submitted to a vote at the first meeting, that extensive discussion of the scope of a General Permit should be addressed at the outset of the February meeting. I am not comfortable with a unilateral decision by D.N.R. staff to ignore the directive from the Advisory Group and, in fact, to eliminate reference to discussion of the General Permit and the vote to make its discussion a priority in the minutes of the January 6th meeting. Click here to go to the D.N.R. web page with a link to the minutes.
  2. On a substantive basis, the lack of a General Permit eliminates an efficient way to make it clear that private structures that were lawfully installed under then current regulations will be allowed to be retained not withstanding subsequent, more stringent regulations. Absent a General Permit grandfathering in pre-existing private structures, the new regulations themselves will have to incorporate legacy language.

Some progress, from the point of view of P.O.P.U.L.A.R. members, was made at the February 12th meeting of the Private Structures Advisory Group.

  • The concept of the “Aquatic Impact Zone” was modified significantly. If it appears in the final recommendations to the D.N.R. commissioner, it will not be based on the square footage limitations contained in the first draft of the rules and challenged as unworkable last month in this blog and in P.O.P.U.L.A.R.’s lobbying efforts. Rather, the Advisory Group reached a consensus that any “aquatic impact zone”, designed to aggregate human impact on a limited portion of the lakeshore property, will be measured along a line parallel to the shoreline according to a formula to be discussed later. P.O.P.U.L.A.R. took the position that the length of the aquatic impact zone should depend on the length of the owner’s shoreline and should be subject to the grandfathering of any prior, lawful uses of private structures. We also argued, with some success, for a non-contiguous aquatic impact zone, in order to allow for the separation of swimming and boating areas on properties where the owner opted to purchase additional lakeshore to allow for safer use of the property.

The table below identifies the variety of opinions on the Advisory Group as to how long the aquatic impact zone should be. P.O.P.U.L.A.R. intends to demonstrate how restrictive some of these proposed configurations are when dealing with a 50-100 foot shoreline and a couple of boats and a swimming area.

Allowed Length of AIZ Votes
Depends on size of property. . . . . . . . . . . . . . . . 5
Depends on size of property (w/limits) . . . . . . 5
Max 50’ or ½ length. . . . . . . . . . . . . . . . . . . . . . 2
Max 40’ or 1/3 length . . . . . . . . . . . . . . . . . . . . . 1
Max 50’ or 1/3 (w/allowance for small lots). . 3
Max 30’ or 1/3 length. . . . . . . . . . . . . . . . . . . . . .1

  • The other area of significant progress was the willingness of the pro-D.N.R. side of the table to acknowledge that it may be necessary to grandfather at least some previously lawfully installed private structures. P.O.P.U.L.A.R. was adamant about the need to compensate lakeshore property owners for any regulatory taking and, more importantly, adamant about everyone on the Advisory Group understanding that entitlement to compensation was a matter of law. While I had the sense that D.N.R. staff and representatives of environmental groups were not happy with the prospect of having to limit the scope of regulations to something affordable, it was not my job to make them happy. I committed to distributing more information on the concept of mandatory compensation before the next meeting.

Two meetings remain before the Advisory Group will turn over recommendations to the D.N.R. commissioner and the public hearing process will begin. We still need to pin down the need for an aquatic impact zone, the propriety of grandfathering prior lawful uses of private structures, the basis for issuing special permits that will address special needs of lakeshore property owners based primarily on safety grounds and the question of enforceability and affordability of whatever final form the rules take.

Some of you have been sending me questions about specific aspects of the rules and the justification for what the D.N.R. is doing. Because of time and budget constraints, I am not in a position to respond on an individual basis, especially since most of the questions are similar. However, if you post your questions as comments to the blog, I will respond publicly in order to allow everyone to share, and comment on, the response.

To those of you who responded to the request for donations, thank you for your support. We would like to continue our aggressive representation of lakeshore property owners and increase our presence at the legislature. However, doing so will take the financial support of everyone with a stake in the outcome. Secure donations through PayPal can be made by clicking on the "Donate" button at the top of the blog. Otherwise, checks can be mailed to P.O.P.U.L.A.R., 247 Third Avenue South, Minneapolis, MN 55415.

Please comment by clicking on the “Comment” link below.

Thursday, February 5, 2009

Frequently Asked Questions about DNR Rulemaking

I have received a number of requests to shorten the length of these blog entries.

To try to keep things more brief, I have prepared the following list of “Frequently Asked Questions” or FAQs. Please feel free to ask anything else in the comment section at the end of the blog.

Q: Why do we need more DNR regulations?
A: Because the Legislature said so in 2008. Senator Mary Olson of Bemidji, responding to pressure from constituents concerned about the size of dock platforms, required the DNR to undertake and complete new rulemaking by January 2010 on the issue of “private structures” in public waters.

Q: Is the “private structure” rulemaking limited to a debate about dock platform sizes?
A: No. Once directed to take a new look at the rules, last modified in 2002 to restrict dock width to 8 feet but with no limit on the length of dock, the DNR has indicated it intends to address all private structures, including boatlifts, boat slip canopies, boat launching ramps, beach sand blankets, dock platforms and docks themselves.

Q: What is P.O.P.U.L.A.R.’s position on the proposed new regulations?
A: Simply put, P.O.P.U.L.A.R. believes that if a private structure was acquired and first utilized in a lawful manner (consistent with then existing regulations), it should be exempted from any new restrictions. The property owner should be allowed to retain and continue to use the private structure and should be allowed to pass on exempted private structures when their lakeshore property is sold. Any new regulations, which should still be reasonable and meet N.E.A.R. criteria, will apply to newly acquired private structures.

Q: What is N.E.A.R.?
A: P.O.P.U.L.A.R. believes any new regulations have to meet a four-way test: Needed, Enforceable, Affordable and Reasonable.
• If there is no demonstrated Need for a change in the regulations, the law prohibits their adoption.
• Any new regulations should be limited in scope to a level that can be Enforced uniformly and with the limited resources available to the DNR.
• New rules that deprive lakeshore property owners of the use of lawfully acquired and utilized property, or result in a reduction in the market value of lakeshore property, constitute a regulatory taking, entitling affected persons to compensation from the State. Therefore, any new regulations should be limited in scope to a level that the State of Minnesota can Afford.
• Taking everything into consideration, the final form of regulations must be Reasonable as a matter of law.

Q: Doesn’t P.O.P.U.L.A.R.’s position, effectively one of “grandfathering” existing docks, boatlifts and other private structures amount to a “I have mine, but you cannot have yours attitude”?
A: Yes. So what? P.O.P.U.L.A.R. believes that is a better approach than “I cannot have mine so formerly legal uses have to be stopped”. Think of it like this. When Congress first mandated more fuel-efficient cars in the 1970’s because of the benefits to the environment and in order to reduce dependence on foreign oil, it did not outlaw "muscle cars" lawfully acquired beforehand or prevent them from being sold. It just looked forward and moved on. Anyone purchasing a vehicle afterward accepted that they were in a new era. It can be the same way with lakeshore property owners (as long as the new private structures regulations are N.E.A.R.).

Q: What is P.O.P.U.L.A.R. doing to prevent the adoption of unneeded, unenforceable, unaffordable and unreasonable regulations?
A: P.O.P.U.L.A.R. has a seat on the Private Structures Advisory Group, appointed to represent the interests of lakeshore property owners. Unlike past rulemaking exercises, the DNR is forced to respond to P.O.P.U.L.A.R.’s challenges to proposed regulations. Because of its position on the Private Structure Advisory Group, P.O.P.U.L.A.R. has been able to publicize elements of the proposals being considered, like the “Aquatic Impact Zone” discussed previously in this blog, resulting in reconsideration by the DNR and less restrictive proposals being used as a baseline for further consideration. More generally, P.O.P.U.L.A.R. serves as a single, focused voice of the hundreds of thousands of lakeshore property owners potentially impacted by new regulations. This blog was visited nearly 6,000 times since initially posted in early 2008. In just the last three weeks, when P.O.P.U.L.A.R. started reporting in earnest on the new rulemaking, the blog has been visited 1,510 times. As P.O.P.U.L.A.R. lobbies the Governor, the Legislature and the DNR, these numbers are significant.

Q: What happens next?
A: Once the Private Structures Advisory Group makes its recommendations to the DNR commissioner, proposed rules will be published. There will likely be public hearings responding to the proposed rules and, depending on the level of support P.O.P.U.L.A.R. receives, we will encourage members’ attendance and arrange for the testimony by members of the business and lake communities to create a record upon which final implementation of rules must be based. Ultimately, the DNR commissioner, the governor and an administrative law judge need to determine that the regulations are needed, reasonable and comply with all requirements of the law. A number of P.O.P.U.L.A.R. members have indicated that they are determined to sue to prevent the implementation of any new regulations that do not meet those standards.

Q: What is the status of Private Structures Advisory Group deliberations?
A: Currently, I am preparing for the February 12th meeting of the Private Structures Advisory Group. The agenda calls for discussion on the scope of a General Permit to exempt certain private structures from regulation. There are some members of the Advisory Group who, at our first meeting, expressed the opinion that the DNR should not issue any general permit and that lakeshore property owners should have to go before the DNR to get permission for pretty much anything that goes into the water. P.O.P.U.L.A.R.’s position, by contrast, is that there should be general permits, written as broadly as possible, allowing legal uses of private structures to be continued without regard to new regulations.

Q: Are the Private Structures Advisory Group meetings open to the public?
A: Yes, but only for purposes of observation. A better way to have input is to communicate with P.O.P.U.L.A.R. to make sure concerns are being addressed and then attend public hearings when held to voice your opinion publicly.

Q: Does P.O.P.U.L.A.R. publish all comments on its blog or are negative comments censored?
A: P.O.P.U.L.A.R.’s policy is to publish all comments with the exception of anonymous personal attacks. We will publish personal attacks if you have the backbone to put your name on them. We will publish anonymous posts that merely express an opinion, for us or against us, but do not engage in personal attacks.

Q: What happens if P.O.P.U.L.A.R. does not receive adequate financial support to fund its efforts?
A: The short answer is that lakeshore property owners will be left to fend for themselves individually. We will complete our service on the Advisory Group and look for volunteers to carry on. However, we believe much of the gains that have been achieved will be lost. The DNR, and the majority of the Advisory Group membership that supports very restrictive limits on the existence of private structures in public waters, are funded by taxpayer money. They do not have any reason to pull back from achieving their agenda.

Please use the "Donate" button at the top right of this blog to show your support. Thank you!

Finally, here is a question from a member who wrapped most of the objections critics of private structures on public waters have into a single question:

Q: If lakeshore property owners are not supposed to (i.) commandeer public waters with their private structures, (ii.) use structures to make their lake experience more comfortable and, depending on conditions, even possible, (iii.) create eyesores that everyone on the lake has to look at, and (iv.) interfere with access to all of the public waters, why aren’t ice fishing houses regulated?
A: Anybody?

Thank you for your support and assistance in keeping P.O.P.U.L.A.R. members' interests protected.