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.

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